Michigan Supreme Court finds violation of state constitution in applying sex offender registry to non-sexual offenders

A divided Michigan Supreme Court, splitting 5-2, ruled earlier this week in Michigan v. Lymon, No. 164685 (Mich. Julu 29, 2024) (available here), that its state constitution precluded putting people convicted of non-sexual crimes on the state’s sex-offender registry.  Here is how the majority opinion begins and a few key passages from a lengthy (nearly 50-page) opinion:

Defendant challenges his inclusion on the sex-offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as cruel or unusual punishment under the Michigan Constitution.  We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution….

Although the 2021 SORA bears a rational relation to its nonpunitive purpose and the Legislature has continued to express its intention that SORA constitute a civil regulation, SORA resembles traditional methods of punishment, promotes the traditional aims of punishment, and imposes affirmative restraints that are excessive as applied to non-sexual offender registrants.  Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders….

We conclude that the punishment of SORA registration for non-sexual offenders like defendant is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution. See Bullock, 440 Mich at 35. Although other jurisdictions similarly include certain non-sexual offenders within their sex-offenderregistry laws, we find that this penalty is unduly harsh as compared to the non-sexual nature of the offense. Further, similar offenses do not result in this same penalty, and the offenses that do result in the same penalty are more severe and have a sexual component.  Accordingly, we conclude that the 2021 SORA constitutes cruel or unusual punishment as applied to non-sexual offenders.

The dissent, authored by Judge Zahra, clocks in at nearly 60 pages and has a multi-page conclusion that starts this way:

It is important to note what the majority opinion is and what it is not.  The majority opinion extends the Michigan Constitution to bar dissemination of accurate information to the public of those who have kidnapped and imprisoned children so that individuals in the community can have the knowledge to lead their lives as they so choose.  In so doing, the majority opinion effectively concludes that the public cannot be trusted with accurate information of convictions, because it may in the view of the majority opinion, unduly shame or burden individuals who were indeed convicted of child kidnapping and imprisonment. Despite being enacted for decades by the federal government and 42 out of 49 other state jurisdictions, this Court concludes that public registration for such offenses does not even reasonably advance the interests of public safety and awareness.  The majority opinion finishes with a conclusion never before reached by Michigan or federal courts: that public dissemination of conviction history, combined with registration requirements to ensure that the information is accurate, is so extraordinary and disproportionate to defendant’s offense of violently imprisoning children while they plead dearly for their lives and the life of their mother amounts to cruel or unusual treatment.  This is an extreme conclusion that will severely hinder this state from publicly recording and registering those who kidnap, abuse, or imprison children.