Sex Offender Legislation Ex Post Facto: The History and Constitutionality of Michigan\u27s Sex Offenders Registration Act

Abstract

Is Michigan’s Sex Offenders Registration Act (“MSORA”) constitutional? Until 2016, courts routinely said yes. In 2016, the Sixth Circuit in Does #1–5 v. Snyder held that the statute was an unconstitutional ex post facto law. In 2021, the Michigan Supreme Court echoed the Sixth Circuit’s holding in People v. Betts. In response, the Michigan legislature passed Public Law 295 of 2020 to amend MSORA, and courts treat the amended act as a “new” statute. Critical analysis of the amended statute’s legality is difficult because the state legislature has seemingly ignored constitutional issues with statutory proposals until after the fact, and consequently, the amended statute’s constitutionality is unclear. A class action challenging MSORA on multiple constitutional grounds is currently pending in federal court. The U.S. Solicitor General agreed with the Sixth Circuit that the old statute violated the federal Ex Post Facto Clause and Michigan’s Attorney implied that she believes the statute may not survive rational basis review. The 2021 amendments to MSORA preserved many of the provisions challenged by the plaintiffs in Does #1–5 v. Snyder. This Note evaluates potential constitutional challenges to MSORA, identifies challenges that could be successful, and suggests actions that the State could take to remedy constitutional repugnancies