Earlier this month, in People v Smith,¹ the Supreme Court held that the current version of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., is criminal punishment that, when applied to certain registrants, violates the Ex Post Facto Clauses of the federal and state constitutions. The takeaway: Michigan cannot enforce SORA against those whose listed offense triggering SORA was committed before July 1, 2011.

The Court issued its order on September 9, 2026. By September 11, the Michigan State Police (MSP) – which is responsible for implementing SORA – announced that it had already removed more than 20,000 individuals from the registry, with more expected to be removed.² 

The order in Smith is momentous, but because some of our clients continue to face repercussions from SORA, there is more work to be done.

First, continue to challenge the application of SORA to those whose listed offense occurred on or after July 1, 2011, but before March 24, 2021. While the differences may seem insignificant when compared to those made by other amendments to SORA, the 2021 version expanded the information that must be reported.³ 

Second, as I discussed in a newsletter article published earlier this year, there are plenty of other problems with SORA.⁴ In particular, look for clients whose tier is determined by the age of the victim. Current law makes MSP responsible for determining the appropriate tier, but this infringes on the judge’s responsibility for imposing sentence. Moreover, it permits the term of registration to be based on MSP’s findings instead of the findings of a jury beyond a reasonable doubt or admission of the client. 

The judge must impose the appropriate tier based on the facts admitted to at the plea hearing or found by the jury at trial – judicial fact-finding is not permitted. In appropriate cases, object to compliance with SORA as a violation of the Sixth Amendment and due process under Apprendi/Alleyne.⁵  

Third, many of those who will be removed from the registry under Smith have prior convictions for violating SORA that are now invalid. This is only true of a SORA offense—like failing to update information—that occurred on or after July 1, 2011. An offense before then would have occurred when the statute was not a criminal punishment and, therefore, was not an ex post facto violation.

If you see these convictions in presentence reports, object to their inclusion in the report and to their use in scoring the sentencing guidelines. If the court insists on including them in the guidelines, move to postpone sentencing so you can have those convictions set aside. And if that is not possible, make sure your client requests appellate counsel and bring the matter to appellate counsel’s attention. As appellate counsel, we have a little more time to deal with setting those convictions aside and can then move to correct an invalid sentence on the basis of inaccurate information.

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