Michigan Court of Appeals Holds Sex Offender Registry Is Not "Punishment"

On October 21st, 2014, the Michigan Court of Appeals held in a criminal case that the Michigan Sex Offender Registry is not "punishment" under Michigan law and therefore, as applied to the defendant in this case, the Sex Offender Registration Act (SORA) does not violate the Ex Post Facto clause or the cruel and unusual punishment clause of the Michigan and US Constitutions.

In People v Temelkoski, Docket No. 313670, the Michigan Court of Appeals addressed the questions of whether Michigan's SORA, as applied to defendant, violated defendant's constitutional rights.

The Court first recited the facts of the case:

In 1994, defendant, then age 19, was charged with second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (person under 13 years of age). The charge arose from an incident where defendant kissed and groped a 12-year-old female. The facts and circumstances of the incident are disputed.

On March 4, 1994, defendant pleaded guilty to CSC-II. Defendant was adjudicated under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq., and sentenced to three years’ probation. On April 16, 1997, upon successful completion of probation, the trial court dismissed the case and defendant did not have a conviction on his record. However, defendant was required to register as a sex offender pursuant to the SORA, which took effect after defendant pleaded guilty. See MCL 28.723(1)(b); MCL 28.722(w)(v). Under the current version of the SORA, defendant is required to register as a sex offender for life. See MCL 28.722(w)(v) (CSC- II involving a minor under age 13 is a “Tier III” offense); MCL 28.725(12) (“Except as otherwise provided . . . a Tier III offender shall comply with this section for life.”)

On August 9, 2012, defendant filed a motion seeking removal from the sex offender registry. Citing People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009), defendant argued that requiring him to register as a sex offender when he does not have a conviction for a sex offense constitutes cruel or unusual punishment. Defendant argued that, like in Dipiazza, he engaged in a consensual act with the complainant. Defendant further claimed that his status as a sex offender caused him difficulty gaining employment and adversely affected his ability to father his children and caused depression. Defendant attached a psychological risk assessment conducted by a licensed psychologist who opined that defendant is at a low risk for reoffending and that he does not meet the clinical classification of a pedophile or sexual predator.

In opposing the motion, the prosecution claimed that it was well-settled law that the SORA’s registration and reporting requirements do not constitute “punishment” in the constitutional sense, and therefore, the requirements did not violate the constitutional proscriptions against cruel or unusual punishment. The prosecution further argued that Dipiazza was limited by In re TD, 292 Mich App 678; 823 NW2d 101 (2011), vacated 493 Mich 873; 821 NW2d 569 (2012), and that the circumstances of the underlying offense were unlike the circumstances in Dipiazza making the case distinguishable.

On September 21, 2012, the trial court granted defendant’s motion . . .

The Court's analysis of whether the trial court erred in granting defendant's motion for removal from the Michigan Sex Offender Registry followed:

. . . “The Ex Post Facto Clauses of the United States and Michigan Constitutions bar the retroactive application of a law if the law: (1) punishes an act that was innocent when the act was committed; (2) makes an act a more serious criminal offense; (3) increases the punishment for a crime; or (4) allows the prosecution to convict on less evidence.” People v Earl, 495 Mich 33, 37; 845 NW2d 721 (2014), citing Calder v Bull, 3 US (3 Dall) 386; 390; 1 L Ed 648 (1798) (emphasis added). “The Michigan Constitution prohibits cruel or unusual punishment, Const. 1963, art. 1, § 16, whereas the United States Constitution prohibits cruel and unusual punishment, U.S. Const. Am. VIII.” People v Benton, 294 Mich App 191, 204; 817 NW2d 599 (2011). Thus, “[i]f a punishment passes muster under the state constitution, then it necessarily passes muster under the federal constitution.” Id. (quotation omitted).

Defendant argues that we should affirm the trial court’s order removing him from the sex offender registry because the SORA as applied to him constitutes cruel or unusual punishment and violates the Ex Post Facto Clause. Necessarily, determination of whether a law violates the Ex Post Facto Clause or amounts to cruel or unusual punishment involves a threshold inquiry into whether the law imposes punishment in the constitutional sense . . .

In sum, the relevant Mendoza-Martinez factors indicate that the SORA does not impose punishment as applied to defendant. The SORA has not been regarded in our history and traditions as punishment, the SORA does not impose affirmative disabilities or restraints, it does not promote the traditional aims of punishment, and the SORA has a “rational connection to a nonpunitive purpose” and is not excessive with respect to this purpose. Defendant therefore has failed to show “by the clearest proof” that the SORA is “so punitive either in purpose or effect” that it negates the Legislature’s intent to deem it civil. Earl, 495 Mich at 44. Accordingly, as applied to defendant, the SORA does not violate the Ex Post Facto Clause or amount to cruel or unusual punishment because it does not impose punishment.