By Marie E. Matyjaszek
The State of Michigan recently was ordered – again – to revise its Sex Offender Registration Act (SORA), which was deemed unconstitutional in 2016.
Almost three years ago, the U.S. Court of Appeals for the Sixth Circuit ruled that the law exacted punishment, and the various amendments unconstitutionally applied retroactively.
You might be wondering why it has taken years to change the law after it was found to violate the Constitution. Well, the State argued that the court ruling only applied to the parties who initiated the civil lawsuit, so if Registrant A was a part of the lawsuit, the law was deemed unconstitutional as it applied to him. But if Registrant B had not successfully won in court over the same issue, he had to follow the law or face the consequences.
SORA has undergone many changes since its inception in 1994. Originally, it was strictly used by law enforcement agencies. In 1999, the registry went online for use by the general public, and required that sex offenders register in person. Photographs of the offenders came online in 2004. While I’m sure many registrants didn’t appreciate these initial requirements, those added in 2006 and 2011 were the sparks behind the lawsuit.
In 2006, the law restricted registrants ability to live, work or loiter within 1,000 feet of a school, and in 2011, individuals on the registry were separated into a three-tiered system, with the categorization based on the conviction. The latter change also forced registrants to physically come in and update changes in their lives, such as new vehicles or e-mail addresses. Violations subjected offenders to criminal penalties, and the new changes applied retroactively to all registrants.
The lawsuit was filed by six registrants, who challenged SORA’s constitutional compliance, arguing that it was vague, violated the First and Fourteenth Amendments, and that the retroactive requirement was an “Ex Post Facto” punishment. The lower court held that there were parts that were unconstitutional, but that it was not an Ex Post Facto law.
Citing a case from 1798, the U.S. Court of Appeals stated that “...the Constitution’s ban on Ex Post Facto laws does not bar all retroactive lawmaking, but only retroactive punishment. ...” The court went into an in-depth discussion of punishment, and concluded that SORA met the definition, in addition to its effect being punitive. It also noted that the sex offender tier designation cannot be appealed, and an offender’s failure to comply with SORA may result in imprisonment. Reversing the lower court’s decision, the Court of Appeals opined that regardless of the crime, “punishment may never be retroactively imposed or increased.”
Despite the Court of Appeals decision in 2016, Michigan did not modify SORA and continued to apply it to all registrants other than those who successfully sued. As the U.S. Supreme Court declined to hear the case, there should not have been any confusion about what needed to happen next. Michigan is now forced to revise SORA within 90 days, or go back to court and explain the delay.
Personally, I believe that SORA is a helpful tool for the public and necessary to protect sexual assault survivors who understandably suffer anxiety and trauma related issues. It does, however, need to comply with the law in all aspects, and there is no excuse for ignoring a court order. Revising the statute in this instance seems especially appropriate, as it could go a long way in helping reform registrants.
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The author is an Attorney Referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. She can be reached at matyjasz@hotmail.com.
