Michigan's Sex Offenders Registration Act has been the subject of extensive constitutional litigation, the results of which have fundamentally reshaped the obligations of registrants convicted before the 2006 and 2011 legislative amendments. The Sixth Circuit Court of Appeals in Does v Snyder, 834 F3d 696 (6th Cir 2016), held that four provisions of the 2006 and 2011 SORA amendments were punitive in character and that their application to persons convicted before their enactment violated the Ex Post Facto Clause of the United States Constitution. The decision identified geographic exclusion zones, the in-person reporting requirements, internet reporting obligations, and the lifetime GPS monitoring requirements as the particularly punitive provisions that transformed SORA from a civil regulatory scheme into criminal punishment.

The Michigan Supreme Court's decision in People v Betts, 507 Mich 527 (2021), adopted the Snyder framework under Michigan's own ex post facto clause and held that all provisions of the 2011 SORA amendments are punitive as applied to persons convicted before the amendments' effective date. The Betts court ordered that such individuals may not be prosecuted under any provision of the 2011 amendments that was not in effect at the time of their conviction. This ruling created a significant defense: any person convicted before the applicable amendment took effect and charged with failure to comply with a provision added by the 2011 amendments may assert that the registration requirement itself is constitutionally unenforceable as to them, negating the predicate obligation on which the failure-to-register charge depends.

Beyond the constitutional challenge, the prosecution in a SORA failure-to-register case must prove beyond a reasonable doubt that the defendant was subject to a valid registration obligation, that the defendant received constitutionally adequate notice of that obligation, that the defendant knew of the specific requirement alleged to have been violated, and that the defendant willfully failed to comply. In People v Hallak, 310 Mich App 555 (2015), the Michigan Court of Appeals addressed the requirements for proving the registration violation and the extent to which the defendant's knowledge of the specific reporting obligation must be established. Defense counsel should scrutinize the prosecution's evidence on each element, particularly the notice and knowledge elements, which can be genuinely contestable where the defendant's registration obligations have changed through legislation or court order.

The Michigan Supreme Court's decision in People v Dinwiddie, 498 Mich 952 (2015), and subsequent cases have addressed the scope of the geographic exclusion zones and confirmed that the constitutionality of those zones as applied to individual registrants remains subject to case-specific challenge. Where a registrant has been charged with a SORA violation based on his or her presence near a school or library, the defense should investigate whether the exclusion zone as applied to the specific location at issue is constitutionally enforceable under the as-applied analysis preserved by Betts and Snyder.

At sentencing, the Michigan Sentencing Guidelines apply to SORA felony violations, and the offense variable scoring must accurately reflect the nature and circumstances of the violation. Where the violation was technical in character—a failure to timely update a vehicle registration or internet identifier, for example—the defense should present mitigating evidence at sentencing demonstrating the absence of any public safety rationale for a custodial sentence, and should advocate for a disposition that provides compliance counseling rather than additional incarceration. Attorney Maze is experienced in presenting these mitigating arguments in Wayne County Circuit Court and in preserving sentencing issues for appellate review.