Thursday, February 22, 2018

Update: Michigan's Sex Offender Registry opinion out of the Michigan Supreme Court

Earlier this month, the Michigan Supreme Court opinion came out on the case of People v. Temelkoski.  That case was supposed to address the constitutionality of Michigan's Sex Offender Registry and how changes to that registry over the years were applied RETROACTIVELY to persons already serving out or have served out their criminal sentences. 

We had hoped that the court would have opined that increased requirements levied by changes to the law were in fact "punishment" and not just a "civil disability"  (note:  The Federal 6th circuit court of appeals ruled last year that the changes to the law were in fact punishment).  If our court had determined that the increased requirements were punishment, those requirements, if levied on current SORA registrants, would be declared unconstitutional under the EX-POST FACTO clause of our US and Michigan Constitutions.

Unfortunately, the court issued a very narrow opinion, focused only on whether Temelkoski should be required to register under SORA because he was sentenced under a "deferral" program known as HYTA.  The court provided that Temelkoski should have been protected under HYTA and not required to register under SORA.

The court did NOT address whether SORA requirements were punishment or just a civil disability, and in fact referred to SORA as being a civil disability.  After I listened again to the oral arguments from last fall, I believe that the Mich Supreme Court will probably NOT issue an order that addresses whether SORA is a “civil disability” or a “criminal punishment", and the current SORA will remain in Michigan until another case or cases challenges the Michigan law.