Supreme Court says 2011 changes to sex offender law cannot be applied retroactively

Beth LeBlanc
The Detroit News

Sex offenders whose convictions predated 2011 changes to Michigan's Sex Offender Registration Act do not need to comply with those changes, the Michigan Supreme Court ruled Tuesday.

The 2011 requirements — which included bans on living within school safety zones and "onerous" in-person reporting requirements — constituted a new form of punishment that cannot be applied retroactively to past cases, a high court majority said in an opinion written by Justice Elizabeth Clement.

“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," Clement wrote. "...the retroactive imposition of the 2011 SORA increases registrants’ punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws."

In this  Friday, Jan. 17, 2020, file photo, The Michigan Supreme Court's Hall of Justice is seen in Lansing, Mich.

Clement was joined by Justices Bridget McCormack, Richard Bernstein and Megan Cavanagh. 

The decision largely aligns with prior federal court rulings that found the 2011 changes unenforceable because they amounted to unconstitutionally retroactive punishment and resembled "the ancient punishment of banishment."

In 2019, Detroit U.S. District Judge Robert Cleland ordered the Legislature to change the law or lose it altogether since the state essentially would be maintaining a legally unenforceable law.

A final federal order banning the enforcement of unconstitutional provisions of the law has not yet been issued.

In December, Gov. Gretchen Whitmer signed a bill into law that eliminated school safety zones and certain appearance requirements. 

Similar to the federal courts, Clement found the 2011 changes to the law resembled "traditional punishments of banishment, shaming and parole" for 40,000 registrants "without any individualized assessment of their risk of recidivism."

“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," Clement wrote. 

In a separate opinion, Justice David Viviano concurred with parts of Clement's opinion but argued the high court could sever unconstitutional parts of the law without wholesale exemptions for those who were convicted prior to 2011.

“I have a difficult time believing that the Legislature, had it reflected on this possibility, would prefer that a complex and far-reaching statute like SORA should be eliminated simply because a few insular sections have been removed," Viviano wrote in an opinion that was joined in part by Justice Brian Zahra. 

Justice Elizabeth Welch did not participate because the court considered the case prior to her election last year.