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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20141021_C313670_79_313670.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Temelkoski</a>, No. 313670, the Court of Appeals reaffirmed that mandatory registration under the Sex Offender Registration Act (SORA), MCL 28.721 et seq., does not constitute “punishment” for purposes of the United States or Michigan Constitutions. &nbsp;Because SORA registration is not punitive, this defendant’s required registration does not violate either the Ex Post Facto Clause, or United States and Michigan constitutional prohibitions against cruel and unusual punishment.&nbsp; Finally, the court concluded that in light of the specific facts and circumstances of this case, the adverse effects of SORA registration are not “overly excessive” compared to the regulatory purpose of registration.

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In March 1994, defendant pleaded guilty to criminal sexual conduct second degree and was adjudicated under the Holmes Youthful Trainee Act, MCL 762.11 et seq. Pursuant to HYTA, because the defendant successfully completed his probation, the case was dismissed and, importantly, he has no conviction on his record. However, defendant was still required to register as a sex offender under a provision of SORA that took effect after his guilty plea.&nbsp; Under the current version of SORA, defendant is required to register for life.&nbsp;

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In August 2012, defendant filed a motion seeking to be removed from the sex offender registry, arguing, among other reasons, that requiring him to register as a sex offender, when he has no conviction for a sexual offense, constitutes cruel and unusual punishment.&nbsp; He also argued that, like the case in People v. Dipiazza, 286 Mich. App. 137 (2009), he should not be required to register because he engaged in a consensual act with the complainant.&nbsp; The trial court granted his motion.&nbsp;

The Michigan Court of Appeals, considering the case as on leave granted from the Michigan Supreme Court, held that registration as a sex offender does not constitute “punishment” under the United States or Michigan Constitutions. The court found that the legislature intended the SORA as a civil remedy rather than criminal punishment, and the statutory scheme was not so punitive as to render it a criminal punishment despite the legislature’s intent. It emphasized that the primary purpose of the SORA is to prevent future sex offenses, not to punish offenders by stigmatization. Because required registration under the SORA does not constitute punishment, the law does not violate either the Ex Post Facto Clause, or United States and Michigan constitutional prohibitions against cruel and unusual punishment.

In its opinion, the court distinguished People v. Dipiazza, 286 Mich. App. 137 (2009), in which the Court of Appeals held that the SORA amounted to cruel and unusual punishment as applied to a defendant, also sentenced under the Holmes Youthful Trainee Act, who engaged in a consensual sexual relationship with a 14- year-old girl when he was 18. Here, unlike in Dipiazza, the age difference between the defendant and the complainant was seven years and the relationship was not condoned by the complainant’s parents. Further, the legislature had amended the SORA after Dipiazza by providing for an exception for “Romeo and Juliet” relationships, for which the defendant did not meet the requirements.

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SORA survives another attack as COA holds that sex offender registration not “punishment” for purposes of the U.S. or Michigan Constitutions

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SORA survives another attack as COA holds that sex offender registration not “punishment” for purposes of the U.S. or Michigan Constitutions

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