Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court ruled their respective Sex Offender Registration and Notification Act was unconstitutional. The ruling is fairly narrow though. The case ruling though highlights an incredible feature of modern jurisprudence concerning sex offender registration and notification: the court have allowed legislatures to pile new regulation upon upon obligation upon requirement on those previously convicted of sex offenses.

In the Michigan case:

On March 4, 1994, Boban Temelkoski pleaded guilty as charged to one count of second-degree criminal sexual conduct . . . Temelkoski was sentenced to three years of probation supervision, subject to the Holmes Youthful Trainee Act (HYTA). . . Under HYTA, certain young offenders between the ages of 17 and 20 may be assigned “youthful trainee” status and ultimately have their cases dismissed and their records sealed.

After his conviction, Michigan adopted SORNA.

SORA retroactively defined Temelkoski’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. . . Over the following years, amendments to SORA imposed increasingly onerous restrictions on Temelkoski, including lifetime registration.

Similarly, Alabama adds new requirements every year. To give one outrageous example, a client of mine was a registered as a sex offender. His probation officer described him as a “model probationer.” He would attend his daughter’s high school softball games which occurred at various public schools in the county. In April 2016, the Alabama legislature passed a new regulation: sex offenders must get advanced permission to appear at any K-12 property and activity; the legislature made it effective immediately upon the Governor’s signature. The Governor signed the bill at 7am in the morning on Saturday. My client went to his daughter’s softball game that afternoon. No one informed him of the law. There was not notification from his probation officer or SORNA supervisor. In fact, they were unaware of the change. Nevertheless, he was indicted for felony violation of the new SORNA statute. Thankfully, we were able to have the felony charges dismissed with prejudice. See more about that case here.

However, because the courts have normally deemed all these restrictions as not punishment, this ever increasing list of requirements, restrictions, and obligations pills up. At some point, the courts must deem the system as moved over the line into punitive.

The Michigan case turned a very fine rationale: the State had made certain promises to Temelkoski through its then youthful offender statute. Perhaps, the same rationale would apply to Alabama. I currently have two appeals before the Alabama Court of Criminal Appeals challenging the constitutionality of the SORNA as applied to Alabama youthful offenders. (See here for discussion.)