2011 Sex Offenders Registration Act Was Unconstitutional Ex Post Facto Punishment

On July 27, 2021 the Michigan Supreme Court held in People v Betts, __ Mich __ (Docket No. 148981 https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Recent Opinions/20-21 Term Opinions/148981.pdf) that the 2011 Sex Offenders Registration Act was unconstitutional ex post facto punishment. This is the first time the Michigan Supreme Court has found that registration is punishment.

Why is it punishment?

In making that determination, the Court relied on the following, as relevant to the factors from the United States Supreme Court decision in Kennedy v Mendoza-Martinez, 372 US 144 (1963):

• “2011 SORA bears significant resemblance to the traditional punishments of banishment, shaming, and parole because of its limitations on residency and employment, publication of information and encouragement of social ostracism, and imposition of significant state supervision.” Betts, __ Mich at __; slip op at 21.

• “2011 SORA imposed onerous restrictions by restricting their residency and employment, and it also imposed significant affirmative obligations by requiring extensive in-person reporting.” Betts, __ Mich at __; slip op at 23. 

• “[B]ecause the 2011 SORA aimed to protect the public through deterrence and because its restrictions appear retributive, the 2011 SORA promotes the traditional aims of punishment.” Betts, __ Mich at __; slip op at 25.

• “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. . . . Registrants were also required to make frequent in-person reports to law enforcement upon minor life changes and regular in-person reports—sometimes multiple times a year—even when no information had changed. These demanding and intrusive requirements, imposed uniformly on all registrants regardless of an individual’s risk of recidivism, were excessive in comparison to SORA’s asserted public-safety purpose.” Betts, __ Mich at __; slip op at 28-29.

The Court held that the “aggregate punitive effects . . . increases registrants’ punishment,” which violated the state and federal constitutions prohibitions on ex post facto punishment. Betts, __ Mich at __; slip op at 29. All six justices who heard the case agreed that SORA was punishment. The majority held the statute could not be saved either through severability or revival of a prior version of SORA. Betts, __ Mich at __; slip op at 40.

The Court’s opinion ended nine years of litigation, which began with a motion in the trial court by Mr. Betts himself and included two oral arguments in the Michigan Supreme Court. The Court recognized the unjust realities for people forced to register under arcane procedures – constant monitoring and public scorn, all of which comes with little to no effect on public safety.

What is the relation of Betts to the federal litigation and what can I do to help my clients?

The Court’s decision echoes and expands upon the Sixth Circuit’s decision and the Eastern District of Michigan’s decision in the similar federal civil Does litigation by the ACLU. What these decisions mean is that if a person’s registerable offense occurred before 2011, that person cannot be prosecuted for violating the registry. A person can likely rely on Betts to have a conviction for violating the registry dismissed if it is on direct appeal. If a conviction is final, it is likely a person can obtain relief through the motion for relief from judgment process in Michigan Court Rule 6.500. Also, there are other compliance violations for post-2011 registrants that cannot be prosecuted based on the Does litigation because of constitutional vagueness and the need for a violation to be willful (knowing). SADO plans to post model pleadings on its website (www.sado.org) within the next month and offer a webinar with the ACLU in the near future.

Do registrants still have to register under the new law?

One thing that was not addressed in either Betts or Does is the constitutionality of the “new” Sex Offenders Registration Act, which the Legislature passed in 2020 and became effective March 24, 2021. What that means for registrants is that even if a person’s registerable offense was committed prior to 2011, the person must still register under the 2021 SORA. The new statute retains much of what the Court found unconstitutional in Betts, including:

• substantial in-person reporting requirements,
• a public internet registry,
• long periods of registration up to life,
• no mechanism for petitioning to be removed from the registry,
• and the complete lack of any individualized assessment of risk.

The ACLU is preparing further civil litigation in federal courts challenging 2021 SORA. Criminal practitioners should be preserving both state and federal constitutional challenges to 2021 SORA, including that it is ex post facto punishment (for pre 3/24/21 registerable offenses), it is cruel and/or unusual punishment, it violates due process, and it is a disproportionate sentence. Keep an eye on www.sado.org for sample pleadings.

What can I do if I do not have a lawyer or am incarcerated?

If you are a person whose conviction is final and you may need to file a MCR 6.500 motion, consider writing to the judge who sentenced you on the registry violation and ask that counsel be appointed. You could even include this article with your letter to explain some of the legal background.

If you are an incarcerated person who thinks they may be entitled to relief under Betts, you can write to SADO for copies of the model pleadings. You should also write to request counsel for a motion under MCR 6.500.

SADO knows that registries do not work and are an extreme burden on those who are forced to register. We will continue to object to registration requirements as we fight the 2021 SORA.

by Jessica Zimbelman

Jessica Zimbelman is Managing Attorney with the State Appellate Defender Office, representing people statewide as they appeal their convictions and sentences. She has appeared before the Michigan Court of Appeals and Michigan Supreme Court multiple times, as well as trial courts throughout the state. Prior to SADO, she was the Senior Analyst in the Legislative Corrections Ombudsman’s Office, monitoring the Michigan Department of Corrections on behalf of the State Legislature. Her experiences allowed her to be the primary author of the Defender Guide for Attorneys: Policies and Procedures of the Michigan Department of Corrections (MDOC)”, published by the Criminal Defense Resource Center at SADO. She previously was an Adjunct Professor at MSU College of Law, instructing 1L and 2L students in writing and oral advocacy. Prior to law school, Jessica was a legislative aide in the Michigan House of Representatives and continues to be active in the policy world through SADO and as Co-Chair of the Rules and Law Committee of the Criminal Defense Attorneys of Michigan. Jessica is a member of the Representative Assembly of the State Bar of Michigan, representing Ingham County. She is also on the Board of Directors of the Ingham County Bar Association.