RELIEF FROM MICHIGAN’S SEX OFFENDER REGISTRY 

Being registered as a sex offender was not considered punishment.
For years Michigan’s sex offender registry act (SORA) was considered by courts not to impose a “punishment.” In other words, if your criminal conviction happened to also require registration under SORA, that consequence didn’t really “punish” you; it was just a “civil remedy” imposed by the state. That view has begun to change—significantly and rapidly in Michigan.

But the 2011 version of SORA found to be punishment, for some.
Just last year, our Supreme Court decided Betts[1] which found that retroactive application of the 2011 version of SORA was, in fact, punishment. The Court found that some of the 2011 changes to SORA violated the Constitutions’ prohibitions against cruel and/or unusual punishment[2]. This was good news for some. In particular, those individuals who were registered before the 2011 changes. Betts offered some relief[3].

And 2021 version of SORA is now considered punishment for “non-sex offenses.”
Most recently, in June 2022, our Court of Appeals in Lymon[4] concluded that even the newest, 2021 version of SORA (passed largely in response to the changing legal landscape), was punishment for individuals who were registered on the basis of a “non-sex offense” conviction. What does that mean? 

To start, Michigan’s SORA makes no distinction between what happened during the commission of the crime or the individual risk of the offender. Instead, registration is based exclusively on the underlying conviction itself. MCL 28.721a (requiring a person who has committed “an offense covered by [SORA]” to register). Mr. Lymon, for example, was convicted of (among other things) the unlawful imprisonment of two minors. But the two “minors” were his own children who happened to be present while Mr. Lymon confronted his wife about extramarital affairs at gunpoint. There was absolutely no sexual component to the crime. Yet unlawful imprisonment of a minor was a listed offense under SORA, and so he was registered as a sex offender. The same is true for many other individuals in Michigan who are forced to register as “sex offenders” based entirely on the fact that their “offense [was] covered by [SORA].” That ends now.

Relief from SORA is available for “non-sex offense” registrants (by application).
Lymon is an important development for anyone who finds themself registered today under SORA on the basis of a non-sex offense conviction. Because the law now says that sex offender registration is cruel or unusual when applied to individuals convicted of crimes that lack a sexual component and are not sexual in nature[5]. As a result, any person who finds themself registered only the basis of their “non-sex offense”conviction can (and should) now petition the court where the conviction occurred for immediate removal from the registry[6].

Michigan’s ACLU continues its federal litigation against SORA on behalf of “non-sex offense” registrants, but also many others.
The recent developments in the way Michigan courts have begun to treat SORA registration (as punishment) is largely based on a series of federal suits brought by the ACLU on behalf of unnamed registrants (“Does”). Starting in Does I (the first round of litigation), in 2016 a federal court in the eastern district of Michigan found portions of Michigan’s SORA unconstitutional. Does II followed. Does III is now being litigated on behalf of several subclasses of Does. One of those subclasses includes: a ‘“non-sex-offense subclass,” defined as members of the primary class who are or will be subject to registration for an offense without a sexual component…”’ Sound familiar? Without addressing how Lymon impacts Does III, there are still a number of other subclasses for which the ACLU seeks relief.

For example, individuals who were “retroactively required to register for life as a result of amendments to SORA.” There are others. You can read all of the ACLU’s filings and get updates here: https://www.aclumich.org/en/what-you-need-know-about-does-iii (accessed July 7, 2022). You can also read about Michigan’s SORA history as well as that of the Does litigation in the ACLU’s verified compliant. Id. (found at previous link).

Bottom line: If you’ve been convicted of a “non-sex offense” but are registered under SORA today, you should apply to be removed from the registry immediately.
As with all things law-related, make sure you consult with a lawyer to ensure you are, in fact, eligible based on the Lymon decision. But its impact appears to be clear for those individuals who are registered only because their offense was listed under SORA even though there was no sexual component to the crime.

Feel free to contact our office at (616) 965-2621 or contact@zamzowfabian.com if you believe you may be entitled to relief and to set up a free consultation.

[1] People v Betts, 507 Mich 527  (2021).

[2] Unlike the US Constitution which prohibits “cruel and unusual” punishment, Michigan’s Constitution prohibits “cruel or unusual” punishment. For that reason, Michigan’s Constitution actually provides broader protection than its federal counterpart. People v Bullock, 440 Mich. 15, 30 (1992) .

[3] The Court specifically stated, however, that its holding did not affect the application of the 2011 amendments to SORA to people registered after it went into affect (they call it “prospective application.”) Betts at 563.

[4] People v Lymon, __ Mich App ___ (No. 327355) 2022 WL 2182165 issued June 16, 2022.

[5] Lymon, ___ Mich App at ___, slip op at pp 18-22.

[6] While the unanimous opinion of Michigan’s Court of Appeals in Lymon may be appealed, it is this author’s opinion that the current Supreme Court in Michigan is unlikely to take up the issue or decide any differently.