MSC: Sex Offenders Registration Act Is Not ‘Cruel Or Unusual’ Punishment

The Michigan Supreme Court has ruled for the first time that, while the 2021 Sex Offenders Registration Act (SORA) does constitute “punishment” for those who must register, it is not “cruel or unusual punishment” that violates the state or federal Constitutions.

The defendant in People v Kardasz (Docket No. 165008) was convicted of first-degree criminal sexual conduct. The Macomb County Circuit Court sentenced him to prison, imposed lifetime electronic monitoring and ordered him to comply with the registration requirements of SORA, MCL 28.721 et seq.

The defendant appealed, arguing the 2021 SORA was “cruel and/or unusual punishment” that violated both the Michigan Constitution (Const 1963, art 1, § 16) and the United States Constitution (US Const, Am VIII).

“We disagree,” the Michigan Supreme Court said in a majority opinion written by Justice Kimberly A. Thomas. “While the 2021 SORA is punishment, we do not find that its requirements are cruel or unusual, either under the facial challenge brought here or as applied to defendant.”

Accordingly, “we affirm the judgment of the Court of Appeals as to defendant’s SORA challenge but vacate its opinion to the extent that it is inconsistent with our reasoning,” the high court said.

Chief Justice Megan K. Cavanagh, Justice Elizabeth M. Welch, Justice Kyra H. Bolden and Justice Noah P. Hood joined the majority opinion.

Justice Brian K. Zahra concurred in part and dissented in part. “While I agree with the majority opinion’s conclusion that the 2021 SORA is not violative of state or federal constitutional prohibitions against excessive punishment, I disagree with its conclusion that the 2021 SORA is a form of punishment,” he wrote.

Justice Richard H. Bernstein also concurred in part and dissented in part. “I would have simply assumed without deciding that the 2021 SORA is punishment, given that any punishment here is not cruel or unusual,” he stated.

Background

The defendant was convicted of first-degree criminal sexual conduct under MCL 750.520b(1)(a) and MCL 750.520b(2)(b). The trial court originally sentenced him to 360 to 550 months in prison. In addition, the trial court imposed lifetime electronic monitoring (LEM) under MCL 750.520n and ordered the defendant to comply with the requirements of SORA.

The defendant appealed. In an unpublished opinion, the Court of Appeals (Docket No. 343545) affirmed the defendant’s conviction but vacated his sentence and remanded for resentencing because “the trial court had exceeded the 25-year statutory minimum sentence without explaining why a 30-year sentence was proportionate.” On remand, the Macomb County trial court resentenced the defendant to 300 to 480 months in prison. Similar to its previous ruling, the trial court ordered LEM and registration under SORA.

The defendant again appealed, this time arguing that lifetime SORA registration constituted cruel or unusual punishment and that LEM constituted cruel or unusual punishment and an unconstitutional search. The Court of Appeals affirmed in an unpublished opinion (Docket No. 358780).

The defendant filed an application for leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal, the high court issued a 71-page dispositive opinion.

SORA History & Analysis

On appeal, the defendant presented both a “facial challenge” and an “as-applied challenge,” claiming the 2021 SORA was unconstitutional because it violated the state and federal constitutional provisions against cruel and unusual punishment.

At the outset, the Michigan Supreme Court majority noted that because the Michigan Constitution (Const 1963 art 1, § 16) “offers broader protection to criminal defendants” than does the federal Constitution, and because “there is neither a facial nor an as-applied violation of the Michigan Constitution, we need not conduct an independent analysis under the federal Constitution,” citing People v Lymon, ___ Mich ___ (July 29, 2024) (Docket No. 164685).

The high court then examined whether Const 1963 art 1, § 16 had been violated. In doing so, “we first assess whether the penalty at issue is a criminal punishment or a civil regulation … then, if it is a punishment, whether that punishment is cruel or unusual …,” the justices stated.

Accordingly, the majority reviewed the history of SORA, noting the statute “has been amended numerous times” and has morphed “from a confidential law enforcement database into a ‘publicly accessible registry that restricted registrants’ movements and required registrants to regularly report various life details and changes to law enforcement in person.’”

Moreover, “Michigan’s SORA has been the subject of numerous legal challenges in state and federal court,” the justices observed. “[T]his Court … also held that the 2011 SORA is punishment and vacated a conviction of failure to register that was based on retroactive application of the law. … We later held that the 2021 SORA was punishment as applied to nonsexual offenders, and we narrowly invalidated the 2021 SORA on constitutional proportionality grounds as applied to defendants whose crimes lacked a sexual component ….”

The majority further pointed out the 2021 SORA “still divides offenders into tiers based on the offense of conviction and any prior history of conviction of registrable offenses, which moves an offender into a more restrictive tier.” In addition, registrants must comply with “periodic in-person reporting requirements” and “must report any changes to their registry information.” Notably, the “exclusionary ‘student-safety zones’ that were the focus of the punishment analysis … were removed from SORA by the 2021 amendments.”

The Michigan Supreme Court continued by examining whether SORA constitutes punishment. In so doing, the justices first looked at legislative intent.

“We adopt our reasoning from Lymon … to conclude that the Legislature intended the 2021 SORA as a civil regulation,” the majority wrote. “When the Legislature enacted the 2021 SORA, it retained from the previous version a statement of intent to ‘better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.’ … SORA was further intended to ‘provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor’ convicted sex offenders. … The promotion of public safety described in the statute is a nonpunitive goal, but promoting public safety by deterring future crimes suggests a punitive intent.”

Meanwhile, a “punitive purpose can also be implied because SORA is imposed as a consequence of criminal conviction, overseen by law enforcement, and punishable by criminal conviction when violated,” the high court observed. “But the Legislature has removed some punitive provisions of SORA since its initial passage, which ‘supports a theory that the Legislature’s recent amendments were made to support a characterization of SORA as civil.’ … Therefore, we continue to find that the Legislature intended the 2021 SORA as a civil regulation.’”

The Michigan Supreme Court then reviewed whether the 2021 SORA “is punishment despite a nonpunitive legislative intent.” In this case, “we follow our reasoning from Lymon that the 2021 SORA resembles parole because there is no distinction between the parole-like aspects of the statute as applied to defendants whose crimes contain a sexual element and those whose crimes do not.”

In particular, the majority noted that “[a]nyone can click a button labeled ‘Track Offender’ to get email updates when someone’s registration information changes. More generally, registry data is easily accessible and searchable. Any member of the public can search by zip code, city, or county to generate a map of registrants who have a residential or work address in that region. Anyone can generate a list of all published offenders, which produces tens of thousands of results, or a list of all ‘non-compliant’ offenders, who are given this general label for a broad range of conduct, including technical violations, such as the failure to maintain current identification or to pay the annual registration fee. Registry data is also considerably more detailed than publicly available court records, and the availability of bulk data holds all registrants out en masse on the internet – the contemporary town square – for others to shame or shun.”

As a result, “we conclude that while the 2021 SORA does not resemble the traditional punishment of banishment, it continues to resemble parole and shaming,” the justices said. “Thus, this factor weighs in favor of determining that the 2021 SORA constitutes punishment.”

The Michigan Supreme Court next examined the factor of “affirmative disability or restraint” and “how the effects of the [statute] are felt by those subject to it.” Similar to Lymon, “here we conclude that the effects of the 2021 SORA are neither minor nor indirect. … As we noted in Lymon, registrants are required to disclose a bevy of personal information, from their home and work addresses to descriptions of their tattoos and their educational enrollment. … Much of this personal information is posted on the public SORA website.” Therefore, “[i]n alignment with our precedent, we continue to find that because the 2021 SORA imposes affirmative disabilities and restraints, this factor favors punishment.”

The high court continued by considering whether the 2021 SORA “promotes the traditional aims of punishment: retribution, specific deterrence, and general deterrence.” The majority pointed out that its analysis of this factor in Lymon “was not dependent on the nonsexual nature of the offenses committed in that case. Accordingly, we continue to find that the 2021 SORA amendments did not alter the intent of the Legislature to deter future criminal sexual acts. … Thus, this factor continues to support a finding that the 2021 SORA is punishment.”

The Michigan Supreme Court then turned to whether the 2021 SORA has “a rational connection to a nonpunitive purpose.” In this case, “we conclude that the statute is rationally connected to the goals of ‘assist[ing] law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.’ … We need not consider ‘whether [a statute] is the most narrowly tailored decision or the most effective method to achieve the nonpunitive goal.’ … Accordingly, this factor aligns with a determination that the 2021 SORA is a civil remedy.”

Lastly, the high court analyzed “whether a regulatory scheme is punitive considers the extent to which the ‘means chosen are reasonable in light of the nonpunitive objective.’” Here, “we consider the application of the 2021 SORA to offenders whose crimes were sexual in nature. … [W]e attempt to provide more clarity on which aspects of the 2021 SORA are not supported by research. We focus on the tiering of registrants, the inclusion of registrants with a low risk of reoffending on the public website, and the lack of opportunity for removal.”

According to the justices, “Michigan’s tier system and others like it do not predict or match the actuarial risk of recidivism. … Given the lack of record evidence linking risk of recidivism at the time of release from prison with the SORA tiering system, we conclude that basing reporting duration and duties solely on the registrable offense does not sufficiently align with the legislative intent to protect the public and reduce future sex crimes.” Specifically, the majority pointed to the publication of “extensive personal information” on the SORA website. “An accessible public database may also support members of the public who may not have the means to run background checks when making decisions about whom they interact with and in what capacity. But this does not mean that the SORA website is rational in all instances. … Numerous other peer-reviewed studies support the conclusion that less inclusive public registries may reduce sexual recidivism, while overinclusive registries may actually increase recidivism rates. Accordingly, we conclude that the SORA website is overinclusive and thus excessive and may be detrimental to the goal of public safety.”

Lastly, the Michigan Supreme Court assessed “the duration of Michigan’s reporting requirements and the lack of opportunity to petition for removal.” The justices pointed out that registrants “who pose virtually no risk of reoffending … must continue to comply with SORA for the entire period dictated by their tier. The combination of lengthy and sometimes lifetime reporting requirements with no opportunity to petition for removal is another excessive component of the 2021 SORA.” The excessiveness of the 2021 SORA as applied to sex offenders “is less pronounced than it was in our analysis of its application to nonsexual offenders in Lymon, and the ameliorative amendments of the 2021 SORA make our analysis a closer call here” than in previous cases, the majority said. “[B]ecause we have found that multiple aspects of the 2021 SORA are excessive to its stated public-safety purpose, we find that this factor weighs in favor of the conclusion that the act is punishment.”

Therefore, looking at the punitive effects of the 2021 SORA “as a whole,” the Michigan Supreme Court said the “only factor that points toward this legislation resembling a civil remedy is its connection to a nonpunitive purpose. In all other respects, the 2021 SORA resembles punishment. … [W]e conclude that the 2021 SORA constitutes punishment.”

Punishment Not ‘Cruel Or Unusual’

Next, the Michigan Supreme Court proceeded to examine whether the 2021 SORA is unconstitutional under the prohibition against “cruel or unusual” punishment. Because the defendant in this case was convicted as a Tier III offender, the justices focused their analysis on Tier III offenders, noting that these offenders have “committed the most severe registrable offenses and are subject to the most onerous requirements.”

In its analysis, the justices applied the test from People v Lorentzen, 387 Mich 167 (1972), to assess whether a punishment is “grossly disproportionate.” Pursuant to Lorentzen, the majority considered four factors: 1) the severity of the sentence relative to the gravity of the offense; 2) sentences imposed in the same jurisdiction for other offenses; 3) sentences imposed in other jurisdictions for the same offense; and 4) the goal of rehabilitation.

The Lorentzen analysis is not a “simple, ‘bright-line’ test, and the application of that test may, concededly, be analytically difficult …,” the high court observed. “On balance, the 2021 SORA is not cruel or unusual punishment either in all instances or as applied to defendant. Tier III offenders have committed serious sex offenses. Their punishment is unique to sex offenses, but it is in alignment with a plurality of states that utilize sex-offender-registration schemes in accordance with the federal SORNA requirements. Moreover, defendant committed the most elevated registrable offense and has not provided evidence to support a claim that lengthy registration requirements are not appropriate relative to his individualized level of risk of reoffending.”

Meanwhile, the 2021 SORA “is not grossly disproportionate in all instances,” the majority said. “Therefore, we cannot conclude that the 2021 SORA is cruel or unusual punishment on its face. We are similarly not convinced that Tier III registration, as applied to defendant, is cruel or unusual.”

Upon reviewing the Lorentzen factors and applying them to the defendant in this case, the justices determined the defendant’s “facial and as-applied constitutional challenges” failed. “Because Michigan’s Constitution offers broader protections than the federal Constitution when assessing the proportionality of criminal punishment, it follows that defendant’s federal claims must also fail.”

Accordingly, “[w]e affirm the Court of Appeals’ decision insomuch as it held that the 2021 SORA is not cruel or unusual punishment in violation of the Michigan Constitution but vacate its opinion to the extent that it is inconsistent with our decision,” the high court held.

As a result, the justices denied leave to appeal on the defendant’s claims regarding LEM.

Justice Zahra: Safety & Well-Being ‘Eroded’

In his partial concurrence and dissent, Justice Zahra said the majority’s opinion “advances this Court’s line of cases that use the Michigan Constitution to chip away at the legal foundation of public registries.”

He pointed out that, while the high court acknowledged the 2021 SORA “is a civil regulation,” a majority of the justices found the defendant “met his burden to show by ‘the clearest proof’ that the 2021 SORA ‘is so punitive either in purpose or effect as to negate the State’s intention to deem it civil ….”

This conclusion is “mere lip service to this exceptionally high burden of proof,” Justice Zahra observed. “The majority opinion reaches this conclusion not by following sound jurisprudential principles of constitutional law, but instead by second-guessing the Michigan legislative and executive branches and relying on studies opining on the effectiveness of public registries. The accuracy and reliability of these studies may not be known for years, if at all. Rather than leaving it to the people’s elected representatives to consider and debate these studies and, if necessary, amend the 2021 SORA, the Court invokes the judicial power to conclude that defendant has shown by ‘the clearest proof’ that SORA is not a civil remedy.”

According to Justice Zahra, “SORA is not punishment. It is distinct from parole, and the registry’s sharing of accurate information with the public regarding sex offenders is not at all similar to colonial ‘shaming’ or other traditional forms of punishment.”

Furthermore, the 2021 SORA, like the comparable federal law, “does not come close to traditionally understood physical restraints, nor does it impose any restrictions or prohibitions on daily life and interactions,” he explained. “SORA’s nonpunitive purpose is to prevent and protect against future criminal sexual acts committed by known sexual offenders, and its requirements are a ‘reasonable’ choice’ in addressing its nonpunitive purpose; therefore, it is not excessive.”

By concluding otherwise, the majority “is at odds with precedent of the Supreme Court of the United States from which Michigan derives its jurisprudence on distinguishing civil measures and criminal punishment and, specifically, the landmark decision in Smith v Doe,” the justice observed.

“Because I would hold that the 2021 SORA is not punishment, I would not address whether it is cruel or unusual,” Justice Zahra wrote. “Nonetheless, I agree with the majority opinion in concluding that the 2021 SORA is not cruel or unusual punishment. … I would affirm the judgment of the Court of Appeals as to defendant’s challenge to SORA but vacate its opinion to the extent that it held that the 2021 SORA was punishment as applied to offenders whose crimes contain a sexual component. I also agree with the majority opinion in denying leave to appeal on defendant’s claims regarding LEM.”

Overall, the majority’s decision “erodes the safety and well-being of Michigan families,” Justice Zahra said. “The Court has made its constitutional declaration at the expense of the power traditionally assigned to the legislative and executive branches of government. Because I defer to the policy choices of our Legislature and do not believe that the exercise of judicial power invoked in this matter is justified, I dissent.”

Justice Bernstein: ‘Simply Assumed’

In a one-page partial concurrence and dissent, Justice Bernstein said he agreed with the majority’s opinion, “save for one notable distinction.”

The justice pointed out the defendant had challenged the 2021 SORA, asserting that the registration requirements amounted to cruel or unusual punishment. “I would have simply assumed without deciding that the 2021 SORA is punishment, given that any punishment here is not cruel or unusual.”

Therefore, “I dissent from Part III(B) of the majority opinion,” he stated.