Michigan Supreme Court Agrees that 2011 Registration Cannot Be Applied Retroactively

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By Larry . . . The case of The People of the State of Michigan v. Paul Betts is an awesome win for our cause. The Michigan Supreme Court was asked to decide whether the retroactive application of Michigan’s Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as amended by 2011 PA 17 and 18 (the 2011 SORA), violates state and federal constitutional prohibitions on ex post facto laws. They held that it does.

In December 1993, Defendant Betts pleaded guilty to second-degree criminal sexual conduct (CSC-II). The trial court sentenced him to 5 to 15 years’ imprisonment. Two years later, SORA took effect. After Betts successfully completed parole, he failed to comply with SORA regarding his requirements. Specifically, in 2012, he failed to report his change of residence, his e-mail address, and his purchase of a vehicle within 3 days. Betts was charged with violating SORA’s registration requirements. He challenged the statute as being unconstitutional as applied to him since his offense occurred prior to the existence of registration in Michigan.

Parallel Federal Litigation

Due to the fact that there were multiple challenges pending, some mistakenly thought that the matter had already been resolved by the Does v. Snyder case decided by the United States Court of Appeals in 2016. See Does #1-5 v. Snyder, 834 F3d 696, 705-706 (2016). The Snyder case was initiated in 2012 by five plaintiffs required to register as Tier III offenders due to the 2011 SORA amendments. They sued Michigan’s governor and the director of the Michigan State Police, arguing that the 2011 SORA was unconstitutional on several grounds. In a series of opinions, the federal district court partially ruled in the plaintiffs’ favor, holding that the 2011 SORA’s student-safety zone provisions were unconstitutionally vague, that certain in-person reporting provisions were unconstitutionally vague, that certain in-person reporting provisions violated the First Amendment, and that registrants [litigants] could not be held strictly liable for violating the 2011 SORA’s requirements. However, the district court rejected the remainder of the claims, including their argument that the retroactive application of the 2011 SORA violated ex post facto protections. On appeal, the Sixth Circuit held that the various amendments imposed in 2006 and 2011 had tipped the legal analysis and that Michigan’s SORA was unconstitutional as applied to the plaintiffs.

Michigan’s First Registration Law

“Although Michigan’s SORA as initially enacted was similar to the Alaska sex-offender registry at issue in the Smith, subsequent amendments have imposed additional requirements and prohibitions on registrants, warranting a fresh look at how the 2011 SORA fares under the constitutional ex post facto protections.” Opinion at 15. The Michigan Supreme Court cited Doe v. State, 189 P3d 999, 1017 (2008) wherein the Alaska Supreme Court held that because of intervening amendments of its sex-offender registry that increased requirements and restrictions on registrants, the retroactive application of its sex-offender registry laws violated ex post facto protections. Id at 15. This first version of Michigan’s SORA created a confidential database accessible only to law enforcement. It required persons convicted of certain sex offenses to register and notify law enforcement of address changes. Since then, the legislature has amended the act several times, altering both the nature of the registry and the requirements imposed by it.

Evolution Year by Year

Michigan’s registry became accessible to the public in 1997 when the legislature required law enforcement to make the registry available for in-person public inspection during business hours. Shortly thereafter, in 1999, the legislature required computerization of the registry and granted law enforcement the authority to make the computerized database available to the public online. And in 2006, the legislature allowed for the registry to send e-mail alerts to any subscribing member of the public when an offender registers within or when a registrant moves into a specified zip code. As the registry became more accessible to the public, the information registrants were required to provide to law enforcement also expanded as well. In 2002, registrants were required to report whenever they enrolled, disenrolled, worked, or volunteered at an institution of higher education. Two years later, in 2004, the legislature directed registrants to provide an updated photograph for addition to the online database. In 2011, more personal information, including employment status, electronic mail addresses and instant message addresses, vehicle information, and travel schedules were added. Registrants were required to update law enforcement of these changes within three business days, a substantial shortening of the time frame from the initial 10- day reporting window. The updates were also required to be made in person rather than by mail, telephone, or e-mail.

Unable to Stop While Ahead

As with most state legislatures, Michigan’s was not able to help itself, and they kept piling on more and more requirements and prohibitions. Specifically, amendments effective in 2006 created exclusion zones that prohibited most registrants from living, working, or loitering within 1,000 feet of a school. The legislature also added an annual registration fee of $50. In 2011, the legislature also enacted significant structural amendments of SORA. These amendments (designed to achieve AWA compliance) categorized registrants into three tiers on the basis of their offenses and based the length of registration on that tier designation. With this reclassification came lengthened registration periods, including a lifetime registration requirement for Tier III offenders. Registrants’ tier classifications were also made available on the public database.

Proving Unconstitutionality

For evaluation of whether registration is civil and non-punitive, the United States Supreme Court has provided seven non-exhaustive factors are relevant to the inquiry. SeeKennedy v. Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 2d 644 (1963). Those factors are:

  1. Whether the sanction involves an affirmative disability or restraint.
  2. Whether it has historically been regarded as a punishment.
  3. Whether it comes into play only on a finding of scienter.
  4. Whether its operation will promote the traditional aims of punishment—retribution and deterrence.
  5. Whether the behavior to which it applies is already a crime.
  6. Whether an alternative purpose to which it may rationally be connected is assignable.
  7. Whether it appears excessive in relation to the alternative purpose assigned

They went on to say, “Again, a challenging party must provide the clearest proof of the statutory scheme’s punitive character in order to [successfully] negate the State’s intention to deem it civil.” The Court continued, “In determining whether defendant has satisfied this burden, we do not examine individual provisions of SORA in isolation but instead assess SORA’s punitive effect in light of all the act’s provisions when viewed as a whole. We assess in turn each of the factors that the United States Supreme Court identified as relevant in Smith.”

The Court found that, of the five factors it deemed relevant, four weighed in Betts’ favor. Two of the factors were deemed not relevant for the analysis.

NARSOL found it highly significant where, on page 28,  the Court said, “Given the uncertainty of the 2011 SORA’s efficacy, the restraints it imposed were excessive. Over 40,000 registrants were subject to the 2011 SORA’s requirements without any individualized assessment of their risk of recidivism. The duration of an offender’s reporting requirement was based solely on the offender’s conviction and not the danger he individually posed to the community. Registrants remained subject to SORA—including the stigma of having been branded a potentially violent menace by the state—long after they had completed their sentence, probation, and any required treatment. All registrants were excluded from residing, working, and loitering within 1,000 feet of a school, even those whose offenses did not involve children and even though most sex offenses involving children are perpetrated by a person already known to the child. As described, this restriction placed significant burdens on registrants’ ability to find affordable housing, obtain employment, and participate as a member of the community…” Opinion at 28-29.

Disabilities & Restraints

In order for registration to be imposed retroactively, it cannot impose disabilities or restraints. See Smith v. Doe, 538 U.S at 100. The court noted that, “. . . the 2011 SORA’s student-safety zones excluded registrants from working, living, or loitering within 1,000 feet of school property. Unlike traditional banishment, these exclusion zones did not explicitly exile a registrant from the community. But they might have effectively banished a registrant from living within the community. For example, in urban areas that host several schools within their geographic borders, the 1,000-foot restriction emanating from each school might have eliminated access to affordable housing. Or, in rural areas with fewer schools but concentrated community areas, the 1,000-foot restriction might have eliminated a registrant’s access to employment and resources within the town or city center. And available homeless shelters might have also been encompassed by the 1,000-foot residency restriction.” Opinion at 18. Compare with Smith v. Doe, 538 US at 101 noting that the 2003 Alaska sex-offender registry, which the United States Supreme Court held did not violate ex post facto protections, left registrants free to move where they wish[ed] and to live and work as other citizens. The Court also found, “. . . THE 2011 SORA also resembles the punishment of shaming. The breadth of information available to the public—far beyond a registrant’s criminal history—as well as the option for subscription-based notification of the movement of registrants into a particular zip code, increased the likelihood of social ostracism based on registration. While the initial version of SORA might have been more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality…” Id at 18.

Conclusion of the Court

NARSOL is excited that the Court’s conclusion is unambiguous. “We hold that the 2011 SORA, when applied to registrants whose criminal acts predated the enactment of the 2011 SORA amendments, violates the constitutional prohibition on ex post facto laws. As applied to defendant Betts, because the crime subjecting him to registration occurred in 1993, we order that his instant conviction of failure to register as a sex offender be vacated.”

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15 Thoughts to “Michigan Supreme Court Agrees that 2011 Registration Cannot Be Applied Retroactively”

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  1. Larry Kincaid

    Now just waiting on you guys to remove the non-violent general offenders from the registry or at least make it reduced to 2 years with an automatic release from it without having to do an appeal in North Carolina and also given the 2nd chance act to expunge that said crime if it was non-violent, since this state is pretty harsh on offenders too no matter what they did!

    1. Sandy

      Larry, I wish it were that easy. If we could just remove anyone from the registry, we would have long ago done so. For there to be any positive change to the NC registry, or any state registry, one of two things needs to happen.
      1. Convince one or more of your state legislators to introduce a bill specifying the changes that you want to occur. You chances are better if you write the bill before approaching the legislator(s). NARSOL couldn’t do this; we have no standing in any specific state.
      2. Someone in the state who can show that his or her inclusion on the registry is causing harm amounting to punishment or who has another valid claim can obtain an attorney and bring a civil suit. NARSOL couldn’t do this; we have no standing in any specific state; NARSOL as an organization cannot show harm or injury due to the registry.

  2. Emma

    Why the US Supreme court just do away with this unconstitutional registry? It causes too many people to become homeless, jobless along with their families.
    I have a loved one who is suffering chronic depression. This country is so unGodly!

  3. Larry

    I see that this is as a positive step, but ex post facto arguments are common and based on that alone, those of us who don’t qualify under the ex post facto rule are still bound for the rest of our lives.
    Now the Constitutional questions draw more of my attention but this is going to be a long process before we see any relief.
    The federal government made it very difficult to make any sweeping changes as instead of the SOR being of a federal nature, they forced each state to develop their own program. So instead of going to the SCOTUS, we have to deal with each individual state and their idiosyncrasies. So I see the courts really getting down to splitting hairs to maintain the status quo.
    I see that eventually the public registry will be done away with, but not the requirement to register. At least not in my lifetime.
    I believe that this whole ploy is to maintain control of a segment of society that would otherwise would not be subject to government whims.
    If you make everyone a criminal and by doing so control their movements, associations and the ability to protect themselves while removing their freedom of choice you remove them as a threat to your agenda and can move on with plans without opposition.
    Larry, thanks so very much for your efforts and dedication to a very frustrating, and tumultuous undertaking as fighting fifty one different court systems.

    1. Tim in WI

      Gee Larry that is the advantage of opting for FTR & Appeal in state courts rather than fed suite. Obviously the fed approach was always going to have limited effect on the states Congress.

      And if and when ex post registrants, ones with absolutely no judgement ordering registration, start pointing out basic facts to juries in local state jurisdictions and putting state actors on witness lists in FTR scenarios taking up valuable docket space stuff will change.

  4. Joe Snyder

    Maybe the supreme court should revisit the whole thing all together. They might have a different tune now that a lot of ranking polititians have their feet to the fire.They may toss the whole thing as unconstitutional as it truly is.

  5. mut

    if the legislature interfeared with a court judgment (punishment) that jusgment is no longer a judicial judgment but is now a legislative judgment, constitutionally incestuous, and VOID. the bell rung here cannot be unrung.
    imo

  6. C. Jackson Park

    For those not in the know, South Carolina’s Supreme Court recently held that lifetime registration, absent Due Process of Law, is unconstitutional. See Powell v. Keel, Appellate Case No. 2019-001063 (2020).

  7. D

    Well they had to admit it is punitive. You cannot punish people twice for a crime.

    1. Former Offender

      But that’s one case in one state. How many other laws are there out there that do the same thing? Hopefully it is a crack in the ice to go after others.

  8. mut

    and then theres the root legislative trial to interpreted and apply federal law to state facts to determine the [federal] Tier level in the halls of the legislature and without judicial safeguards?

    1. mut

      the elephant in the livingroom

  9. Donald Berry

    Wonderful news, When can we get this same help in Florida? I’m retroactively being punished for life. One plea-deal in 1993. I was 19 year old on the alleged Criminal offense date.

  10. Dr.

    Just got back from Gratiot Co.
    sheriffs office,
    I asked what if anything has changed, (since my last reporting) ?, yes the thousand foot rule does not apply, that was it !
    The paper work was quicker than before.
    We agreed on the incompetence of the Michigan State Police and the legislature,

    but other than that everything was as it was before….

    30 days back in 5-10-1993 !

    30 years and counting,

    just read the paperwork,
    first line under picture is ( tier 3 )
    then down by the bottom victim’s age,
    and below that, place of incarceration, blank. Date of incarceration, blank. Date of release, blank.
    Whom ever is filling out the forms has a cherry picking background!!!!

    1. Russ

      You’d be amazed at how many people making these laws are indeed perverts and pedophiles themselves. The entire system is disgusting and corrupt.