Michigan Sex Offender Registration Act (SORA) Unconstitutional as Applied

In July 2015, Ionia County Circuit Judge Suzanne Hoseth Kreeger agreed with defense arguments that the Michigan Sex Offender Registration Act (SORA) was unconstitutional as applied to a defendant because the mandatory registration provisions of the Act violated due process and constituted cruel and/or unusual punishment.  The defendant was 16 years old at the time of the offenses(two counts of third-degree criminal sexual conduct and one count of aggravated indecent exposure) and had no prior criminal history.  The defendant was tried as an adult and sentenced as an adult to prison terms of 75 months to fifteen years, and as a Tier III offender under SORA, which required that he register as a sexual offender for life.

Judge Hoseth Kreeger distinguished the recent case of People v. Bosca, __ Mich. App. __ (Docket No. 317633, decided March 26, 2015), which held that registration under SORA was not a punishment, because it addressed adult, and not juvenile offenders.  The judge determined that, while the offenses reflected sexual conduct of a serious nature, the circumstances were also consistent with “childish impulsivity and sexual curiosity,” which arose in and following games of “Spin the Bottle” and “Truth or Dare.”

The judge rejected the prosecution argument that registration was not punishment, and noted that “[w]hile the Defendant is still incarcerated, the lifetime registration requirement will undoubtedly impact his ability to find housing and employment.”  Judge Hoseth Kreeger also determined that the Michigan Act created “an irrebuttable presumption that all juvenile offenders pose a high risk of committing additional sexual offenses,” but that studies have shown that juvenile sexual offenders exhibit low levels of recidivism.  The judge concluded that the mandatory SORA registration requirement, a “lifetime restriction of [the defendant’s] liberty and property without an evidentiary hearing and an individualized assessment of dangerousness specific to the facts and circumstances” of the case, was unconstitutional as applied to the defendant.

The defendant was represented by SADO Assistant Defender Anne Yantus, Manager, Special Unit on Pleas & Sentencing.  A copy of the July 17, 2015, Opinion and Order in People v. Gostnell, 8th Judicial (Ionia County) Circuit Court No. 14-K-16041-FH, is available here:  http://www.sado.org/cdn/articles/10511_People-v_-Gostnell.pdf.

by Neil Leithauser
Associate Editor