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We have challenged Michigan’s Sex Offenders Registration Act (SORA) for almost a decade. In response to repeated rulings that an old version of the law was unconstitutional, the state passed a new SORA, which went into effect on March 24, 2021. We believe that this new law, which is very similar to the old law, has done little to fix the constitutional problems with Michigan’s registry.
On February 2, 2022, we filed Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.), challenging the new SORA as unconstitutional. Specifically, SORA fails to provide for individual review or an opportunity for removal, forcing tens of thousands of people, including people who didn’t even commit a sex offense, to be branded as sex offenders and subjected to extensive, and in most cases life-long restrictions, without any consideration of their individual circumstances, which is a violation of their due process and equal protection rights. The complaint also challenges SORA as imposing unconstitutional retroactive punishment, including by retroactively extending the registration terms of thousands of people to life.
Expert reports filed with the case explain that Michigan’s registry is counter-productive: because registration makes it more difficult for people to find housing, employment and family support — the key factors in preventing recidivism—the registry makes the public less safe.
In May 2022, the judge certified a class action and appointed our litigation team as class counsel. That means that everyone who is on Michigan’s registry is automatically part of the case.
The court also certified several subclasses. Decisions about a subclass will automatically apply to all registrants who meet the definition for the subclass. You may or may not be in a subclass, and you could be in more than one subclass. The subclasses have specific legal claims. The subclasses are:
- Pre-2011 ex post facto subclass: people required to register based on offenses from before July 1, 2011.
- Retroactive extension of registration subclass: people who were retroactively required to register for life.
- Barred from petitioning subclass: people who have been on the registry 10 years and meet certain criteria for petitioning but cannot petition for removal after 10 years (usually because they are Tier II or III registrants, or are juveniles).
- Non-sex-offense subclass: people who are the registry but did not commit a sex offense.
- Plea bargain subclass: people who pled guilty and were retroactively subjected to SORA even though it didn’t exist at the time of their plea, and people whose registration terms were extend beyond those in effect at the time of the plea.
- Post-2011 subclass: people required to register based on offenses on or after July 1, 2011.
The exact legal definitions of the subclasses — which is what determines whether you are part of a subclass — are in the class certification order.
Over the summer of 2022, we also briefed two major motions.
First, we requested a preliminary injunction on several claims. If a preliminary injunction is granted, it will give class members temporary relief while the case is being litigated. Because these cases take years to litigate, we sought a preliminary injunction on the claims where temporary relief could have the most impact and where preliminary relief before final judgment is appropriate. (We have other claims on which we did not seek preliminary relief that could provide relief at a later point.)
The claims for which we sought preliminary relief are:
- Ex Post Facto Claim – that SORA 2021 is punishment and cannot be retroactively applied to pre-2011 registrants.
- Retroactive Extension of Registration to Life Claim – that registry obligations cannot be retroactively extended to last for life.
- Unequal Opportunity to Petition Claim – that procedures currently available to Tier I registrants to petition for removal from the registry should apply to all registrants who meet the same eligibility criteria.
- First Amendment Compelled Speech Claim – that forcing registrants to report information compel them to speak in violation of their First Amendment rights.
- Non-Sex Offense Claim – that it is unconstitutional to require people who did not commit a sex offense to register as sex offenders.
- First Amendment Compelled Admission Claim – that registrants cannot be forced to sign a form saying they understand SORA. (This form is used in prosecutions against registrants for SORA violations.)
Second, the state moved to dismiss the entire case, including both the claims described above and our other claims.
In early September 2022, the Court denied, without prejudice, both our motion for preliminary injunction as well as the state’s motion to dismiss.
The Court concluded further development of the record was appropriate before ruling on either our claims or the issues raised in the state’s motion to dismiss. The case was moved into a discovery phase where both sides will have the opportunity to gather additional facts and evidence.
In March 2023, we filed a motion to amend the initial complaint to add another claim to the case focused on people with out-of-state convictions.
- Non-Michigan Conviction Claim: Registrants with non-Michigan convictions are subject to harsher registration requirements than in-staters, and receive no notice or opportunity to be heard in violation of their due process and equal protection rights.
The Court granted our request to amend the complaint, and also certified an additional subclass:
- Non-Michigan offense subclass: people who are required to register based on a non-Michigan conviction or adjudication.
During the discovery phase of the case, we gathered significant facts and evidence. We were able to obtain data for the class, which experts then analyzed for a report showing that most common myths about registrants are wrong.
The Court then ordered both parties to submit motions for summary judgment, meaning we will argue that there is no dispute about the material facts in the case, and we are entitled to win as a matter of law. On October 2, 2023, we submitted our Motion for Summary Judgment along with a comprehensive Statement of Facts. We filed a response to the State’s motion for summary judgment and fact statement on December 29, 2023.
On September 27, 2024, the Court issued a decision siding with registrants on some issues and with the state on others. The granted summary judgment to both the plaintiffs and the defendants, as follows:
Count I – Ex Post Facto Clause: The Court held that Michigan’s Sex Offenders Registration Act, at amended effective 2021 (SORA 2021), like the previous law, is punishment and thus violates the Ex Post Facto Clause. The Court held that the in-person reporting requirements and retroactive extension of registration terms that were added in 2011 cannot be applied retroactively to people whose registrable crimes occurred before the 2011 amendments.
Count II – Retroactive Extension of Registry Terms: The Court held that retroactively extending the time one must serve on the registry (e.g., from 25 years to life) is punitive, and thus violates the Ex Post Facto Clause for people whose crimes occurred before the 2011 amendments. Almost 17,000 people will come off the registry after 25 years, rather than spending the rest of their lives on the registry.
Count III – Lack of Individualized Review: The Court held that individualized review of whether a person must register is not required as a matter of due process or equal protection.
Count IV – Unequal Opportunity to Petition for Removal: This claim argued that because Tier II and Tier III registrants are at least as likely as Tier I registrants to become rehabilitated and to no longer pose a risk to the public, they should be allowed the same right to petition for removal as Tier I registrants, under the Equal Protection Clause. The Court disagreed and granted summary judgment to the defendants.
Count V – Mandatory Reporting Requirements and Compelled Speech: This claim argued that being forced to provide personal information via SORA reporting is compelled speech that violates registrants’ First Amendment rights. The Court disagreed and granted summary judgment to the defendants.
Count VI – Violation of Plea Agreements: This claim argued that imposing SORA on people who had entered plea agreements, not knowing that SORA would be imposed after the fact, or that SORA would change over time for the worse, violates the Due Process Clause as well as contract principles that govern criminal sentencing in plea agreements. The Court didn’t decide this claim because it held that affected registrants would get the same relief under the ex post facto claim: their registry terms will go back down from life to 25 years.
Count VII – Registration of People Who Did Not Commit Sex Offenses: The Court held that people who did not commit sex offenses cannot be placed on the registry, unless a sexual motive is established at a judicial hearing that meets due process requirements. The Court granted summary judgment to the plaintiffs. A recent Michigan Supreme Court case on this issue (People v. Lymon) came out the same way.
Count VIII – Vagueness of SORA’s Requirements: This claim argued that parts of SORA are so vague that neither registrants nor law enforcement know what is required. The Court did not decide this claim, but directed the parties to come up with agreed-upon clarifications, or if they cannot, to present additional briefing.
Count IX – Compelled Admission of “Understanding” SORA: This claim argued that making people sign a form stating that they “understand” their obligations under SORA – a form which is typically used against them if they claim ignorance or confusion when they are prosecuted for a SORA violation – violates the First Amendment. The Court agreed and granted summary judgment to the plaintiffs.
Count X – Reporting of Electronic Information: This claim argued that mandatory reporting of email and online identifiers chills registrants’ speech rights under the First Amendment. The Court agreed that the current reporting rules violate the First Amendment, and granted summary judgment to the plaintiffs.
Count XI – Out-of-State Convictions: This claim argued that people with non-Michigan convictions are treated differently/worse than people with Michigan convictions and that they are entitled to procedural protections in determining their tier level and how long they must stay on the registry. The Court agreed that the current system violates due process and equal protection. The Court held that a judicial determination is required to put such people on the Michigan registry, and that they cannot be treated differently/worse than in-staters regarding the length of their registration.
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What Happens Next: The decision does not take immediate effect. The Court ordered the parties to draft a proposed judgment. Additional briefing on some issues is likely. After the judgment is entered, either side could appeal on issues they lost. The legislature could also decide to amend SORA to address the constitutional problems identified by the Court.
The ACLU is reviewing the opinion, which is available here. Check back for more information.