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October 19, 2015

COA: Registration as a sex offender is not “punishment”

In People v. Tucker, No. 322151, the defendant appealed his no contest plea convictions of felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2).  Defendant’s conviction required him to, inter alia, register as a sex offender under the “recapture” provision of the Sex Offenders Registration Act (SORA), MCL 28.723(1)(e), in which an individual who did not have to register previously under SORA must register thereafter if the individual is convicted of any other felony after the effective date.  The Michigan Court of Appeals held that this registration requirement does not violate the Ex Post Facto Clause because it does not increase the punishment for the defendant’s prior crime.  Furthermore, the Court held that the registration requirement does not constitute cruel or unusual punishment because registration as a sex offender is not “punishment.”
The defendant was convicted in 1990 of assault with intent to commit criminal sexual conduct involving penetration under MCL 750.520g(1).  On October 1, 1995, SORA went into effect.  Although defendant’s convicted crime is a “listed offense” requiring registration, the defendant was not required to register because he was discharged from probation before the registry went into effect.  In 2011, the Legislature amended SORA to include a “recapture” provision, which provided that an individual who was previously convicted of a listed offense for which he was not required to register, but who is convicted of any other felony on or after July 1, 2011 are required to register under the SORA.  On October 8, 2013, the defendant pleaded no contest to felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2).  The defendant was required to register under the SORA for life.  The defendant argued that the registration requirement violated the state and federal Ex Post Facto Clauses, the federal Cruel and Unusual Punishment Clause, and the state Cruel or Unusual Punishment Clause.
In affirming the trial court’s decision, the Court of Appeals held that SORA’s registration requirement did not violate the Ex Post Facto Clause because it did not increase defendant’s punishment for his 1990 conviction.  Rather, defendant’s 1990 conviction was used to enhance the consequences of his 2013 felony, which was committed after the effective date of the statute.  Furthermore, the Court held that even in light of recent amendments to the requirements of sex offender registration, registration does not constitute punishment under the Mendoza-Martinez factors.  In particular, it found that there is no clear proof that the SORA amendments precluding registered sex offenders from residing or working within “school safety zones” and requiring in-person reporting are so punitive in purpose or effect to negate the Legislature’s intent to deem them civil.

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