People v. Betts

Decision Date27 July 2021
Docket NumberCalendar No. 1,Docket No. 148981
Citation968 N.W.2d 497,507 Mich. 527
Parties PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul J. BETTS, Jr., Defendant-Appellant.
CourtMichigan Supreme Court

D. J. Hilson, Prosecuting Attorney, and Charles F. Justian, Chief Appellate Attorney, for the people.

State Appellate Defender (by Michael L. Mittlestat, Jessica Zimbelman, and Sofia Nelson ) for defendant.

Miriam J. Aukerman, Michael J. Steinberg, Monica Andrade, and Daniel S. Korobkin for the American Civil Liberties Union Fund of Michigan, amicus curiae.

Michigan Appellate Assigned Counsel System (by Bradley R. Hall ) and Warner Norcross + Judd LLP (by Gaëtan Gerville-Réache, Grand Rapids, Nicole A. Samuel, Ashley G. Chrysler, Grand Rapids, and Adam D. Bruski, Midland) for the Criminal Defense Attorneys of Michigan, amicus curiae.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Ann M. Sherman, Deputy Solicitor General, for the Attorney General, amicus curiae.

Keith Kushion, Gratiot County Prosecutor, B. Eric Restuccia, Deputy Solicitor General, and Joseph T. Froehlich and Jessica Mullen, Assistant Attorneys General, for the Gratiot County Prosecutor, amicus curiae.

Kimberly A. Thomas for law professors in support of defendant, amicus curiae.

Paul D. Reingold for Safe & Just Michigan, the Michigan Chapter of the National Association of Social Workers, the Michigan Youth Justice Center, the Northwest Initiative, the Professional Advisory Board to the Coalition for a Useful Registry, and the Michigan Collaborative to End Mass Incarceration, amici curiae.

BEFORE THE ENTIRE BENCH (except Welch, J.)

Clement, J.

We are asked to decide whether the retroactive application of Michigan's Sex Offenders Registration Act (SORA), MCL 28.721 et seq. , as amended by 2011 PA 17 and 18 (the 2011 SORA), violates state and federal constitutional prohibitions on ex post facto laws. See U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10. We hold that it does.

I. THE EVOLUTION OF SORA

The Michigan Legislature enacted SORA in 19941 in response to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program, 42 USC 14071, "to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders," MCL 28.721a. This first version of SORA created a confidential database accessible only to law enforcement; it required persons convicted of certain sex offenses to register and notify law enforcement of address changes. MCL 28.725(1), as enacted by 1994 PA 295. Since then, the Legislature has amended the act several times, altering both the nature of the registry and the requirements imposed by it. Defendant alleges that these changes transformed SORA from a regulatory scheme, as it existed in 1996, into a punishment scheme by the time of his failure-to-register conviction in 2012,2 such that the retroactive application of those provisions to him violated the Ex Post Facto Clauses of the Michigan and United States Constitutions.

The registry became accessible to the public in 1997, when the Legislature required law enforcement to make the registry available for in-person public inspection during business hours. MCL 28.730(2), as amended by 1996 PA 494. Shortly thereafter, in 1999, the Legislature required computerization of the registry and granted law enforcement the authority to make the computerized database available to the public online. MCL 28.728(2), as amended by 1999 PA 85. And in 2006, the Legislature allowed for the registry to send e-mail alerts to any subscribing member of the public when an offender registers within or when a registrant moves into a specified zip code.

As the registry became more accessible to the public, the information registrants were required to provide to law enforcement also expanded.3 In 2002, the Legislature required registrants to report whenever they enrolled, disenrolled, worked, or volunteered at an institution of higher education. MCL 28.724a, as amended by 2002 PA 542. Two years later, in 2004, the Legislature directed registrants to provide an updated photograph for addition to the online database. MCL 28.728(3)(c), as amended by 2004 PA 238, effective May 1, 2005. And in 2011, the Legislature required registrants to report more personal information, including employment status, "electronic mail addresses and instant message addresses," vehicle information, and travel schedules. MCL 28.727, as amended by 2011 PA 18. Registrants were required to update law enforcement of these changes within three business days, a substantial shortening of the time frame from the initial 10-day reporting window. MCL 28.725(1), as amended by 2011 PA 17. The updates were also required to be made in person rather than by mail, telephone, or e-mail. Id . The 2011 amendments further added a periodic reporting requirement that instructed registrants to present themselves to law enforcement, in person, one or more times a year, even if registrants had no changes to report. MCL 28.725a(3), as amended by 2011 PA 17.

In addition to the expansion of personal information contained in the database, the Legislature also increased other restrictions and obligations imposed by SORA. Specifically, amendments effective in 2006 created "exclusion zones" that prohibited most registrants from living, working, or "loitering" within 1,000 feet of a school. MCL 28.733 to MCL 28.736, as amended by 2005 PA 121. The Legislature also added an annual registration fee of $50. See MCL 28.725a(6), as amended by 2013 PA 149.

The Legislature also enacted significant structural amendments of SORA in 2011. These amendments categorized registrants into three tiers on the basis of their offenses and based the length of registration on that tier designation. MCL 28.722(k) and MCL 28.722(s) through (u), as amended by 2011 PA 17. With this reclassification came lengthened registration periods, including a lifetime registration requirement for Tier III offenders. MCL 28.725(12), as amended by 2011 PA 17. Registrants’ tier classifications were also made available on the public database. MCL 28.728(2)(l ), as amended by 2011 PA 18.

Not all amendments burdened registrants; some were ameliorative. Registration requirements were removed for individuals who were under 14 years old at the time of their offense, MCL 28.722(b), as amended by 2011 PA 17, and for individuals who engaged in consensual but unlawful sexual conduct with a minor under certain conditions, MCL 28.722(t)(v ), as amended by 2011 PA 17. Students enrolled in remote-learning programs for higher education were relieved from reporting their education status, MCL 28.724a(6), as amended by 2011 PA 17. And Tier I offenders’ registration information was removed from public access. MCL 28.728(4)(c), as amended by 2011 PA 18.

SORA initially conceived a confidential law enforcement tool to manage registrants’ names and addresses, but by 2012, that tool transformed into a publicly accessible database that imposed significant restrictions on the lives of registrants. It is this transformation that defendant alleges has caused the retroactive application of the 2011 SORA to violate constitutional ex post facto protections.

II. FACTS AND PROCEDURAL HISTORY

In December 1993, defendant pleaded guilty to second-degree criminal sexual conduct (CSC-II), MCL 750.520c. The trial court sentenced defendant to 5 to 15 years’ imprisonment. Two years later, SORA took effect. After defendant's successful completion of parole, defendant failed to comply with SORA requirements. Specifically, in 2012, defendant failed to report his change of residence, his e-mail address, and his purchase of a vehicle within 3 days, contrary to MCL 28.725(1)(a), (f), and (g), as amended by 2011 PA 17.

The prosecutor charged defendant with violating SORA's registration requirements, MCL 28.729(1)(a). Defendant moved to dismiss the charge, arguing that the retroactive application of the 2011 SORA requirements violated the constitutional prohibitions on ex post facto laws. The trial court denied this motion. Defendant ultimately entered a no-contest plea, conditional on his ability to challenge on appeal the constitutionality of the retroactive application of the 2011 SORA. The trial court sentenced defendant to 36 months’ probation, with 12 months’ jail time, but suspended imposition of that sentence during the pendency of defendant's appeal.

Defendant sought leave to appeal in the Court of Appeals, and the Court of Appeals denied defendant's application for lack of merit in the grounds presented.4 Defendant subsequently sought leave to appeal in this Court. After a period of abeyance for the resolution of related cases, this Court heard oral argument on the application in March 2019.5 Following oral argument on the application, this Court granted defendant's application for leave to appeal and directed further oral argument as to the following issues:6

(1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. , taken as a whole, amount to "punishment" for the purposes of the Ex Post Facto Clauses of the Michigan and United States Constitutions, U.S. Const., art. I, § 10; Const. 1963, art. 1, § 10 ; see People v. Earl , 495 Mich. 33 (2014), see also Does #1-5 v. Snyder , 834 F.3d 696, 703-706 (C.A. 6, 2016), cert. den. sub. nom. Snyder v. John Does #1-5 , [––– U.S. ––––] 138 S. Ct. 55 [199 L.Ed.2d 18] (2017) ; (2) if SORA, as a whole, constitutes punishment, whether it became punitive only upon the enactment of a certain provision or group of provisions added after the initial version of SORA was enacted; (3) if SORA only became punitive after a particular enactment, whether a resulting ex post facto violation would be remedied by applying the version of SORA in effect before it transformed into a punishment or whether a
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