People v. Tucker ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
October 15, 2015
Plaintiff-Appellee, 9:05 a.m.
v No. 322151
Oakland Circuit Court
ANTHONY GESTAIL TUCKER, LC No. 2012-242851-FH
Defendant-Appellant.
Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 his no contest plea convictions of felonious
assault, MCL 750.82, and domestic violence, MCL 750.812. Defendant was sentenced, as a
second habitual offender, MCL 769.10, to 119 days, time served, for the felonious assault
conviction and 93 days, time served, for the domestic violence conviction. Defendant was also
required to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL
28.721et seq. We affirm.
I. BACKGROUND
Defendant was convicted in 1990 of assault with intent to commit criminal sexual
conduct involving penetration, MCL 750.520g(1). He was sentenced to three years’ probation
and was discharged in 1993. On October 1, 1995, SORA went into effect. Although assault
with intent to commit criminal sexual conduct involving penetration is a “listed offense”
requiring registration, MCL 28.722(w)(iv), defendant was not required to register because he was
discharged from probation before the registry went into effect, MCL 28.723(1). In 2011, the
Legislature amended SORA, 2011 PA 17, to include the following “recapture” provision,
codified at MCL 28.723(1)(e):
1
See People v Tucker, unpublished order of the Court of Appeals, entered July 3, 2014 (Docket
No. 322151).
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(1) Subject to subsection (2), the following individuals who are domiciled
or temporarily reside in this state or who work with or without compensation or
are students in this state are required to be registered under this act:
* * *
(e) An individual who was previously convicted of a listed offense for
which he or she was not required to register under this act, but who is convicted
of any other felony on or after July 1, 2011.
On October 8, 2013, defendant pleaded no contest to felonious assault, MCL 750.82, and
domestic violence, MCL 750.81(2), under a Cobbs2 agreement under which he would be
sentenced to time served. At sentencing, the trial court told defendant that he would be required
to register as a sex offender under MCL 28.723(1)(e)3 and gave defendant the opportunity to
withdraw his plea. Defendant declined. Defendant was required to register for life as a “Tier
III” offender.
Defendant then filed a motion to correct an invalid sentence in order for the trial court to
remove him from the SORA registry, arguing 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. The trial court denied the motion and determined
that defendant was required to register under the terms of the law.
II. EX POST FACTO CLAUSES
Defendant first contends that the requirement that he register as a sex offender under
SORA violates the Ex Post Facto Clauses of the state and federal Constitutions. We disagree.
We review de novo issues of constitutional law. People v Temelkoski, 307 Mich. App.
241, 246; 859 NW2d 743 (2014). The United States and Michigan Constitutions prohibit ex post
facto laws. People v Callon, 256 Mich. App. 312, 316-317; 662 NW2d 501 (2003), citing US
Const, art 1, § 10; Const 1963, art 1, § 10. This Court has declined to interpret the Ex Post Facto
Clause of the Michigan Constitution to afford broader protection than its federal counterpart. Id.
at 317. All laws that violate ex post facto protections exhibit the same two elements: “(1) they
attach legal consequences to acts before their effective date, and (2) they work to the
disadvantage of the defendant.” Id. at 318. “The critical question [for an ex post facto violation]
is whether the law changes the legal consequences of acts completed before its effective date.”
Id. (citations and quotation marks omitted; alteration in Callon; emphasis omitted). This Court
has identified four circumstances that implicate the Ex Post Facto Clauses:
2
People v Cobbs, 443 Mich. 276; 505 NW2d 208 (1993).
3
Defendant was required to register under MCL 28.723(1)(e) because of his felonious assault
conviction, which is a felony. See MCL 750.82(1). His domestic violence conviction is a
misdemeanor conviction. MCL 750.81(2).
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A statute that affects the prosecution or disposition of criminal cases involving
crimes committed before the effective date of the statute violates the Ex Post
Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a
more serious criminal offense, (3) increases the punishment, or (4) allows the
prosecution to convict on less evidence. [Riley v Parole Bd, 216 Mich. App. 242,
244; 548 NW2d 686 (1996).]
In this case, the third circumstance is at issue, as defendant argues that his registration as a sex
offender has increased the punishment for his 1990 conviction. Plaintiff counters that MCL
28.723(1)(e) cannot constitute an ex post facto law because it attaches legal consequences to
defendant’s 2013 convictions, not his 1990 conviction.
We find caselaw on recidivist statutes helpful in answering this question. As a general
matter, “ ‘recidivist statutes . . . do not change the penalty imposed for the earlier conviction.’ ”
People v Reichenbach, 459 Mich. 109, 124-225; 587 NW2d 1 (1998), quoting Nichols v United
States, 511 U.S. 738, 747; 114 S. Ct. 1921; 128 L. Ed. 2d 745 (1994). Callon is instructive in this
regard. The defendant in Callon was convicted of impaired driving, MCL 257.625(3), in 1993.
Callon, 256 Mich. App. at 315. On October 9, 1999, he was arrested for operating a vehicle under
the influence of intoxicating liquors or while having a blood alcohol content of 0.10 grams or
more per 100 milliliters of blood (OUIL/UBAL), MCL 257.625(1). Id. at 314. During the
period between the two offenses, the Legislature amended the pertinent statute so that a previous
impaired-driving conviction could be used to enhance a subsequent OUIL/UBAL conviction. Id.
at 315-316. This Court rejected the defendant’s ex post facto challenge to this enhancement,
holding that the amendment to the statute had not altered the legal consequences of his 1993
conviction, but rather altered the legal consequences of his 1999 conviction. Id. at 318. This
Court explained, “[T]he conduct for which defendant is being punished is driving while
intoxicated or with an unlawful blood alcohol level after having fair notice that the statute had
been amended to permit enhancement of an OUIL/UBAL conviction with a prior impaired-
driving conviction.” Id. at 319. This Court concluded, “Simply put, there is no retroactive
application of the law where a prior conviction is used to enhance the penalty for a new offense
committed after the effective date of the statute.” Id. at 321.
In this case, although MCL 28.723(1)(e) is not a traditional recidivist statute, the
reasoning of Callon applies nonetheless. Defendant’s registration was not required until he
committed another felony in 2013. His 1990 conviction was used to enhance the consequences
of his 2013 felony, which was committed after the effective date of the statute. This would be a
different case if on July 1, 2011, the effective date of MCL 28.723(1)(e), defendant had been
immediately required to register as a sex offender because of his 1990 conviction alone. Rather,
defendant is required to register in connection with the 2013 felony. Defendant’s registration in
this case is inextricably tied to his 1990 conviction. But this does not lead to the conclusion that
new legal consequences have been added to that conviction. In Callon, the enhancement was
similarly tied to the defendant’s preceding impaired-driving conviction, but the consequences
were added to his subsequent OUIL/UBAL offense. See Callon, 256 Mich. App. at 319.
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Therefore, the recapture provision found in MCL 28.723(1)(e) does not violate the Ex Post Facto
Clauses of the state and federal Constitutions.4
III. CRUEL OR UNUSUAL PUNISHMENT
Defendant next argues that requiring him to register as a sex offender constitutes cruel or
unusual punishment. We disagree.
As stated above, we review de novo issues of constitutional law. Temelkoski, 307 Mich
App at 246. Defendant, as the party challenging SORA, bears the burden of proving that it is
unconstitutional. Id. at 247.
Article I, § 16 of the Michigan Constitution prohibits the infliction of cruel or unusual
punishment.5 A threshold question in this case, of course, is whether registration constitutes
punishment at all. See Temelkoski, 307 Mich. App. at 250-251. We have repeatedly held that sex
offender registration does not constitute punishment because the registry is designed to protect
the public rather than punish the offender. Id. at 250-271; People v Golba, 273 Mich. App. 603,
615-621; 729 NW2d 916 (2007); People v Pennington, 240 Mich. App. 188, 191-197; 610 NW2d
608 (2000).6 But defendant posits an argument that we have not yet addressed. He argues that in
4
Amicus argues that defendant’s registration as a sex offender violates the Ex Post Facto
Clauses as applied to him. However, the United States Supreme Court has held that ex post facto
challenges cannot be brought on an as-applied basis. Seling v Young, 531 U.S. 250, 263; 121 S. Ct.
727; 148 L. Ed. 2d 734 (2001). Therefore, we reject amicus’s argument.
5
The Eight Amendment of the United States Constitution prohibits the infliction of cruel and
unusual punishment. US Const, Am VIII. The state constitutional provision is interpreted more
broadly than the federal provision, and therefore if a particular punishment “passes muster under
the state constitution, then it necessarily passes muster under the federal constitution.” People v
Nunez, 242 Mich. App. 610, 618 n 2; 619 NW2d 550 (2000).
6
One exception was People v Dipiazza, 286 Mich. App. 137; 778 NW2d 264 (2009). In that case,
the defendant, aged 18, had a consensual sexual relationship with NT, “who was nearly 15 years
old.” Id. at 140. NT’s parents “knew of the relationship and condoned it.” Id. at 154. The
defendant and NT subsequently married. Id. The defendant pleaded guilty to attempted third-
degree criminal sexual conduct, MCL 750.92; MCL 750.520d(1)(a), and was placed on youthful
trainee status under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq., on August
29, 2004. Id. at 140. Under SORA as it existed at that time, the defendant was required to
register as a sex offender. Id. However, under amendments to SORA that went into effect on
October 1, 2004, if the defendant had been placed on HYTA status on or after October 1, he
would not have been required to register as a sex offender. Id. at 141. The defendant was
successfully discharged from HYTA status and petitioned to be removed from the sex offender
registry. Id. at 140. This Court held that the defendant’s registration as a sex offender
constituted cruel or unusual punishment as applied to him. Id. at 156. In 2011, however, SORA
was amended to include “a consent exception . . . that provides some youthful offenders relief in
situations involving consensual sex acts.” Temelkoski, 307 Mich. App. at 261. The Temelkoski
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light of recent amendments that have added to the requirements of sex offender registration, it
now constitutes punishment. He specifically draws our attention to school safety zones and in-
person reporting requirements. We take this opportunity to address the constitutionality of these
provisions.
A. HISTORY OF SORA
SORA first went into effect on October 1, 1995. People v Dipiazza, 286 Mich. App. 137,
142; 778 NW2d 264 (2009). It has been amended 20 times since. See 2014 PA 328; 2013 PA 2;
2013 PA 149; 2011 PA 18; 2011 PA 17; 2006 PA 46; 2006 PA 402; 2005 PA 121, 2005 PA 123,
2005 PA 127, 2005 PA 132, 2005 PA 301; 2005 PA 322; 2004 PA 237, 2004 PA 238; 2004 PA
240; 2002 PA 542; 1999 PA 85; 1996 PA 494; 1995 PA 10.7 These amendments have generally
made registration more intrusive and onerous for registrants. Defendant argues that these
successive amendments have turned what was originally only a law enforcement tool into a
punishment for the offenders. We do not attempt to catalogue every amendment to SORA but
only those that are most relevant to the resolution of the questions before us.
The sex offender registry as it first existed in 1995 was not public and was accessible
only by law enforcement. Dipiazza, 286 Mich. App. at 142. Offenders were required to register
for 25 years for their first offense and for life for a second or subsequent offense committed after
October 1, 1995. MCL 28.725(3) and (4), as enacted by 1994 PA 295. In 1996, limited public
inspection was allowed. MCL 28.730(2), as added by 1996 PA 494. Police agencies were
required to make registry information for the zip codes within their jurisdiction “available for
public inspection during regular business hours.” Id.
In 1999, the registry became available to the public through the Internet. MCL
28.728(2), as amended by 1999 PA 85; Dipiazza, 286 Mich. App. at 142-143. The amendment
also added more “listed offenses” requiring registration. MCL 28.722(d), as amended by 1999
PA 85. Further, a “catch-all” provision was added, which included as a listed offense “[a]n
offense substantially similar to” a listed offense. MCL 28.722(d)(xiii), as added by 1999 PA 85.
The amendment also provided that persons convicted of certain offenses would be required to
register for life. MCL 28.725(7), as added by 1999 PA 85. Finally, offenders were now required
to report in person to verify their domicile or residence. MCL 28.725a, as added by 1999 PA 85.
In 2002, SORA was amended to require sex offenders who are students or employees at
institutions of higher education to register with the law enforcement agency with jurisdiction
over the institution’s campus. MCL 28.724a, as added by 2002 PA 542. A registrant’s status as
a student or employee at such an institution became included on the registry. MCL 28.728(3)(b),
Court held that in light of these amendments, the analysis in Dipiazza was “outdated.” Id. at
258.
7
Defendant refers in his brief to the “legislative history” of these changes as purportedly
recounted in the legislative analyses. But our Supreme Court has stated that such staff-prepared
analyses are of little value in interpreting statutes and “[i]n no way can . . . be said to officially
summarize the intentions of” the Legislature. In re Certified Question from the United States
Court of Appeals for Sixth Circuit, 468 Mich. 109, 115 n 5; 659 NW2d 597 (2003).
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as added by 2002 PA 542. The 2002 amendment also included a statement of legislative
purpose:
The legislature declares that the sex offenders registration act was enacted
pursuant to the legislature’s exercise of the police power of the state with the
intent 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. The legislature has determined that a person who has
been convicted of committing an offense covered by this act poses a potential
serious menace and danger to the health, safety, morals, and welfare of the
people, and particularly the children, of this state. The registration requirements
of this act are intended to provide law enforcement and the people of this state
with an appropriate, comprehensive, and effective means to monitor those persons
who pose such a potential danger. [MCL 28.721a, as added by 2002 PA 542.]
In 2004, registrants were first required to pay a $35 “registration fee.” MCL 28.725a(6),
as added by 2004 PA 237. Another 2004 amendment required that photographs of registrants be
added to the registry. MCL 28.728(3)(c), as added by 2004 PA 238.
In 2005, SORA was amended to create “student safety zones,” defined as “the area that
lies 1,000 feet or less from school property.” MCL 28.733(f), as added by 2005 PA 121.
Offenders were generally precluded from residing within school safety zones. MCL 28.735(1),
as added by 2005 PA 121. This preclusion did not apply if the offender was residing within a
student safety zone when the act was enacted into law. MCL 28.735(3)(c), as added by 2005 PA
121.8 Otherwise, an offender was required to “change his or her residence to a location outside
the student safety zone not more than 90 days after he or she is sentenced for the conviction that
gives rise to the obligation to register.” MCL 28.735(4), as added by 2005 PA 121.
Another amendment in 2005 precluded offenders from working or loitering within
student safety zones. MCL 28.734, as added by 2005 PA 127. “Loiter” was defined as “to
remain for a period of time and under circumstances that a reasonable person would determine is
for the primary purpose of observing or contacting minors.” MCL 28.733(b), as added by 2005
PA 121. This subsection likewise did not apply to a sex offender working within student safety
zones when the act was enacted into law, MCL 28.734(3)(a), as added by 2005 PA 127, or to a
sex offender “whose place of employment is within a student safety zone solely because a school
is relocated or is initially established 1,000 feet or less from the individual’s place of
employment,” MCL 28.734(3)(b), as added by 2005 PA 127.9 In 2006, the public became
eligible to receive notifications when persons in their zip code were required to register as sex
8
This exception did not apply “to an individual who initiates or maintains contact with a minor
within that student safety zone.” MCL 28.735(3)(c), as added by 2005 PA 121.
9
Again, these exceptions did not apply “to an individual who initiates or maintains contact with
a minor within that student safety zone.” MCL 28.734(3)(a) and (b), as added by 2005 PA 127.
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offenders or when registered sex offenders moved their residences to that zip code. MCL
28.730(3), as amended by 2006 PA 46.
In 2011, SORA underwent what defendant characterizes as a “sweeping overhaul.” The
recapture provision was added. MCL 28.723(1)(e), as added by 2011 PA 17. Further, sex
offenders were classified into three “tiers” according to the offense they were convicted of.
MCL 28.722(r)-(w), as added by 2011 PA 17. Tier I offenders were required to register for 15
years, Tier II offender for 25 years, and Tier III offenders for life. MCL 28.725(10)-(12), as
added by 2011 PA 17. Offenders were also now required to report in person when they change
residences, change places of employment, discontinue employment, enroll as a student with
institutions of higher education, discontinue such enrollment, change their names, temporarily
reside at any place other than their residence for more than seven days, establish an e-mail or
instant message address or “any other designations used in internet communications or postings,”
purchase or “begin[] to regularly operate” a vehicle, or discontinue such ownership or operation.
MCL 28.725(1)(a)-(h), as added by 2011 PA 17.
In 2013, SORA was amended to require a $50 registration fee upon initial registration
and each year thereafter, capped at $550. MCL 28.725a(6), as amended by 2013 PA 149.
Further, the number of times and months an offender had to report became dependent on the tier
he fell into. MCL 28.725a(3), as amended by 2013 PA 149. In the present case, defendant, as a
Tier III offender, must report for the rest of his life four times each year, MCL 28.725a(3)(c), as
well as upon the occurrence of any events listed in MCL 28.725(1).
B. THE MENDOZA-MARTINEZ FACTORS
Determining whether a statutory scheme imposes punishments requires a two-step
inquiry. Temelkoski, 307 Mich. App. at 258. First, the Court must determine whether the
Legislature intended the statute to be punitive. Id. If the intent was to punish, the inquiry is
complete. Id. But “if the Legislature intended to enact a civil remedy, the court must also
ascertain whether the statutory scheme is so punitive either in purpose or effect as to negate [the
State’s] intention to deem it civil.” Id. (citations and quotation marks omitted; alteration in
Temelkoski). To do so, the Court looks to the seven factors enunciated in Kennedy v Mendoza-
Martinez, 372 U.S. 144; 83 S. Ct. 554; 9 L. Ed. 2d 644 (1963). Temelkoski, 307 Mich. App. at 259.
Those factors are as follows:
“[1] Whether the sanction involves an affirmative disability or restraint, [2]
whether it has historically been regarded as a punishment, [3] whether it comes
into play only on a finding of scienter, [4] whether its operation will promote the
traditional aims of punishment—retribution and deterrence, [5] whether the
behavior to which it applies is already a crime, [6] whether an alternative purpose
to which it may rationally be connected is assignable for it, and [7] whether it
appears excessive in relation to the alternative purpose assigned.” [People v
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Earl, 495 Mich. 33, 44; 845 NW2d 721 (2014), quoting Mendoza-Martinez, 372
U.S. at 168-169 (alterations in Earl).]
These seven factors serve as “useful guideposts” and are “neither exhaustive nor dispositive.”
Earl, 495 Mich. at 44 Further, a party asserting that a statutory scheme imposes punishment
must provide “ ‘the clearest proof’ ” that the scheme “ ‘is so punitive either in purpose or effect
to negate the . . . intention to deem it civil.’ ” Id., quoting Kansas v Hendricks, 521 U.S. 346, 361;
117 S. Ct. 2072; 138 L. Ed. 2d 501 (1997) (alteration in Earl).
In this case, defendant does not dispute that the Legislature did not intend SORA to
constitute punishment. Indeed, the Legislature explicitly stated that its intent was not to impose
punishment. MCL 28.721a. Based largely on this statement of purpose, this Court has
“conclude[d] that the Legislature intended SORA as a civil remedy to protect the health and
welfare of the public.” Temelkoski, 307 Mich. App. at 262. Therefore, it is necessary to look to
the Mendoza-Martinez factors to determine whether the school safety zones and in-person
reporting requirements are so punitive in purpose or effect that they negate the Legislature’s
intent to deem them civil. See id. at 262. In this endeavor, we first find instructive the United
States Supreme Court’s application of the Mendoza-Martinez factors to the Alaska sex offender
registration statute in Smith v Doe, 538 U.S. 84; 123 S. Ct. 1140; 155 L. Ed. 2d 164 (2003).
C. SMITH
Smith “is the preeminent case holding that a sex offender registration and notification
law, as applied to an adult defendant, is not a form of punishment.” Temelkoski, 307 Mich. App.
at 263. The Supreme Court applied the Mendoza-Martinez factors and determined that the
Alaska sex offender registration statute, Alaska Stat § 12.63.010 et seq., did not constitute
punishment for ex post facto purposes. Smith, 538 U.S. at 97-106.
1. AFFIRMATIVE DISABILITY OR RESTRAINT
The Smith Court first observed that sex offender registration does not resemble
imprisonment, “the paradigmatic affirmative disability or restraint.” Smith, 538 U.S. at 100. The
Court noted that the Alaska statute did “not restrain activities sex offenders may pursue but
leaves them free to change jobs or residences.” Id. The Court also reasoned that although
registration may negatively affect offenders, such as in finding housing and employment, “these
consequences flow not from the Act’s registration and dissemination provisions, but from the
fact of conviction, already a matter of public record.” Id. at 101. Finally, the Court noted that
offenders were not required to register in person. Id.
The Court also rejected the contention that registration is akin to probation or supervised
release, although it acknowledged that the argument “has some force.” Id. at 101. The Court
explained that “[p]robation and supervised release entail a series of mandatory conditions and
allow the supervising officer to seek the revocation of probation or release in case of infraction.”
Id. Sex offenders, on the other hand, were “free to move where they wish and to live and work
as other citizens, with no supervision.” Id. And although registrants were required to “inform
the authorities after they change their facial features (such as growing a beard), borrow a car, or
seek psychiatric treatment, they [were] not required to seek permission to do so.” Id. Further,
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although offenders faced criminal penalties for failing to comply with reporting requirements,
such penalties arose from proceedings that were separate from their underlying offense. Id. at
101-102.
2. HISTORICAL PUNISHMENTS
The Court found any resemblance between sex offender registration and historical
shaming punishments “misleading.” Smith, 538 U.S. at 97-98. “Punishments such as whipping,
pillory, and branding,” the Court explained, “inflicted physical pain and staged a direct
confrontation between the offender and the public.” Id. at 98. Conversely, the stigma attached
to a registered sex offender “results not from public display for ridicule and shaming but from
the dissemination of accurate information about a criminal record, most of which is already
public.” Id. The Court reasoned, “Our system does not treat dissemination of truthful
information in furtherance of a legitimate governmental objective as punishment.” Id. The
Court also stated that adverse effects felt by registrants, such as “mild personal embarrassment”
and “social ostracism” were not “an integral part of the objective of the regulatory scheme.” Id.
at 99.
The Court added that “[t]he fact that Alaska posts the information on the Internet d[id]
not alter [its] conclusion.” Smith, 538 U.S. at 99. “The purpose and the principal effect of
notification are to inform the public for its own safety, not to humiliate the offender,” the Court
explained. Id. “Widespread public access is necessary for the efficacy of the scheme, and the
attendant humiliation is but a collateral consequence of a valid regulation.” Id. “The process is
more analogous,” the Court stated, “to a visit to an official archive of criminal records than it is
to a scheme forcing an offender to appear in public with some visible badge of past criminality.”
Id. The Court also observed that the registry was passive, as a member of the public must seek
out the information on the website. Id. The Court further noted that Alaska’s website did not
allow the public to shame an offender by, for example, “posting comments underneath his
record.” Id.
3. SCIENTER
The Smith Court found this factor to be “of little weight” without extended explanation.
Smith, 538 U.S. at 105.
4. TRADITIONAL AIMS OF PUNISHMENT: DETERRENCE AND RETRIBUTION
The Court stated that it was undisputed that the sex offender registry could potentially
deter crime. Smith, 538 U.S. at 102. But the Court noted that “[a]ny number of governmental
programs might deter crime without imposing punishment.” Id. The Court reasoned, “ ‘To hold
that the mere presence of a deterrent purpose renders such sanctions “criminal” . . . would
severely undermine the Government’s ability to engage in effective regulation.’ ” Id., quoting
Hudson v United States, 522 U.S. 93, 105; 118 S. Ct. 488; 139 L. Ed. 2d 450 (1997).
The Court also disagreed with the proposition that registration was retributive because the
length of time that an offender was required to register “appear[ed] to be measured by the extent
of the wrongdoing, not by the extent of the risk posed.” Smith, 538 U.S. at 102 (quotation marks
and citation omitted). Although the Court acknowledged that the statute “differentiate[d]
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between individuals convicted of aggravated or multiple offenses and those convicted of a single
nonaggravated offense,” it found that such “broad categories” and the “corresponding length of
the reporting requirement” were “reasonably related to the danger of recidivism,” which was
“consistent with the regulatory objective.” Id.
5. CRIMINAL BEHAVIOR
Along with the scienter factor, the Court found this factor to be “of little weight.” Smith,
538 U.S. at 105. “The regulatory scheme applies only to past conduct, which was, and is, a
crime,” the Court explained. Id. The Court stated that this was “a necessary beginning point, for
recidivism is the statutory concern.” Id. The Court added that “[t]he obligations the statute
impose[d] are the responsibility of registration, a duty not predicated upon some present or
repeated violation.” Id.
6. RATIONAL CONNECTION TO A NONPUNITIVE PURPOSE
The Court held that this was the most significant factor in its determination. Smith, 538
U.S. at 102. The Court stated that the Alaska sex offender registration statute had “a legitimate
nonpunitive purpose of public safety, which is advanced by alerting the public to the risk of sex
offenders in their communit[y].” Id. at 102-103 (quotation marks and citation omitted; alteration
in Smith). According to the Court, the respondents acknowledged that this purpose was valid
and rational. Id. at 103. They argued, however, that the statute “lack[ed] the necessary
regulatory connection because it [was] not narrowly drawn to accomplish the stated purpose.”
Id. (quotation marks and citation omitted). The Court rejected that argument and stated, “A
statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive
aims it seeks to advance.” Id.
7. EXCESSIVENESS
The Smith Court rejected the contention that the statute was excessive because it applied
to all convicted sex offenders without individual determinations of dangerousness. Smith, 538
U.S. at 103. “Alaska could conclude that a conviction for a sex offense provides evidence of
substantial risk of recidivism,” the Court reasoned. Id. The Court found this to be “consistent
with grave concerns over the high rate of recidivism among convicted sex offenders and their
dangerousness as a class.” Id. The Court noted that “[t]he risk of recidivism posed by sex
offenders is ‘frightening and high.’ ” Id., quoting McKune v Lile, 536 U.S. 24, 34; 122 S. Ct. 2017;
153 L. Ed. 2d 47 (2002). The Court stated, “The Ex Post Facto Clause does not preclude a State
from making reasonable categorical judgments that conviction of specified crimes should entail
particular regulatory consequences.” Smith, 538 U.S. at 103. The Court further explained that a
legislature has the power to fashion “a rule of universal application.” Id. at 104 (quotation marks
and citation omitted). “The State’s determination to legislate with respect to convicted sex
offenders as a class, rather than require individual determination of their dangerousness, does not
make the statute a punishment under the Ex Post Facto Clause.” Id. The Court stated that
Alaska was permitted to “dispense with individual predictions of future dangerousness and allow
the public to assess the risk on the basis of accurate, nonprivate information about the registrants’
convictions without” thereby imposing punishment. Id.
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The Court also rejected the argument that the duration of the reporting requirements was
excessive. Id. at 104. The Court relied on empirical research, which showed that most child
molesters who reoffend do so not within the first several years after they were released but “ ‘as
late as 20 years following release.’ ” Id. (citation omitted).
The Court likewise rejected the contention that the registry was excessive because of its
wide dissemination. Smith, 538 U.S. at 104. The Court reiterated that the registry was passive
because “[a]n individual must seek access to the information.” Id. at 105. The Alaska website
also warned “that the use of displayed information to commit a criminal act against another
person is subject to criminal prosecution.” Id. (quotation marks and citation omitted). “Given
the general mobility of our population,” the Court reasoned, “for Alaska to make its registry
system available and easily accessible throughout the State was not so excessive a regulatory
requirement as to become a punishment.” Id. The Court stated that determining excessiveness
“is not an exercise in determining whether the legislature has made the best choice possible to
address the problem it seeks to remedy,” but “whether the regulatory means chosen are
reasonable in light of the nonpunitive objective.” Id. The Court concluded that the Alaska
statute met that standard. Id.
D. APPLICATION OF THE MENDOZA-MARTINEZ FACTORS TO SCHOOL SAFETY
ZONES AND IN-PERSON REPORTING REQUIREMENTS
This Court in Temelkoski generally endorsed the analysis in Smith. Temelkoski, 307
Mich. App. at 262-270. As noted, however, the Michigan SORA has changed substantially since
it was first enacted in 1994. Further, given recent amendments, it is also markedly different from
the statute reviewed by the United States Supreme Court in Smith in 2003. Although defendant
argues that SORA as a whole is unconstitutional, he primarily takes issue with the school safety
zones and in-person reporting requirements. Temelkoski did not address these particular
provisions, although it generally held that sex offender registration does not impose punishment.
Id. Under these circumstances, we conclude that the sex offender registration does not impose
punishment and focus on whether the school safety zones and in-person reporting requirements
are punitive in purpose or effect using the Mendoza-Martinez factors.10
1. AFFIRMATIVE DISABILITY OF RESTRAINT
a. SCHOOL SAFETY ZONES
10
The prosecution relies heavily on Doe v Snyder, 932 F Supp 2d 803, 811-814 (ED Mich,
2013), in which the court purportedly held that the recent amendments to SORA did not make
the scheme punitive in effect. The court stated that the new provisions had “repeatedly been
upheld.” Id. at 811. However, the court relied on cases from 1999 and 2000 for that proposition,
and the school safety zone and in-person reporting provisions were added after those cases were
decided. See id. Therefore, we find that decision unpersuasive.
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Some state courts have concluded that school safety zones impose an affirmative
disability or restraint on sex offenders.11 The Supreme Court of Indiana, addressing a similar
provision barring sex offenders from residing within 1,000 feet of school property, held that such
a restriction “is neither minor nor indirect.” State v Pollard, 908 NE2d 1145, 1147, 1150 (Ind,
2009). The Indiana law, however, did not include a grandfather provision, and thus barred
registrants from living within 1,000 feet of a school even if the registrant had lived there before
the law was passed. Id. at 1150. The law also required a registrant to change residences if a
school or youth program center opened within 1,000 feet of the registrant’s residence. Id.
The Supreme Court of Kentucky, addressing a provision disallowing sex offenders from
living within 1,000 feet of a school, stated that it found it “difficult to imagine that being
prohibited from residing within certain areas does not qualify as an affirmative disability or
restraint.” Commonwealth v Baker, 295 S.W.3d 437, 439-441, 445 (Ky, 2009). Similar to the
Indiana law, a registrant in Kentucky “face[d] a constant threat of eviction” because he or she
would be forced to move if a school opened upon within 1,000 feet of his or her home. Id.
But other courts have held to the contrary. The Supreme Court of Iowa, addressing a
statute prohibiting sex offenders from living within 2,000 feet of a school, recognized that such a
provision “clearly impose[s] a form of disability.” State v Seering, 701 NW2d 655, 659, 668
(Iowa, 2005). But the court held that “the disabling nature of the statute is not absolute.” Id.
The court added, “[W]e are mindful of the objectives of the residency restriction under the
statute and understand that a statute that imposes some degree of disability does not necessarily
mean the state is imposing punishment.” Id.
We agree with the reasoning of the Indiana and Kentucky courts. Prohibiting registrants
from living and working in many areas is undoubtedly an affirmative restraint. Further, the
grandfather clause in Michigan is limited, as it only applies to residences where the offenders
were living before January 1, 2006. MCL 28.735(3)(c). If that clause does not apply and a
person who lives in a school safety zone commits a sex offense and is required to register, he or
she will be forced to leave his or her home. MCL 28.735(4). Therefore, rather than merely
restraining sex offenders, the school safety zone may expel offenders in certain circumstances.
Also, offenders who are not protected by the grandfather clause face the constant prospect that
they will be forced to move if a new school opens near their home. Unlike in Smith, offenders
under the current Michigan SORA are not entirely free to change residences or jobs given the
student safety zone provisions. Although we agree with the Seering Court that such a restraint is
not “absolute,” it is a restraint nonetheless. See Seering, 701 NW2d at 659.
11
Cases from foreign jurisdictions are not binding on this Court, but may be persuasive. People
v Campbell, 289 Mich. App. 533, 535; 798 NW2d 514 (2010). Similarly, lower federal court
decisions are not binding on this Court, but may be persuasive. People v Fomby, 300 Mich. App.
46, 50 n 1; 831 NW2d 887 (2013).
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b. IN-PERSON REPORTING REQUIREMENTS
Some state courts have also concluded that frequent in-person reporting requirements
impose an affirmative disability or restraint. The Supreme Judicial Court of Maine held that a
similar provision requiring quarterly, in-person reporting “place[d] substantial restrictions on the
movements of lifetime registrants and may work an impractical impediment that amounts to an
affirmative disability.” State v Letalien, 2009 ME 130, ¶ 37; 985 A2d 4 (2009) (quotation marks
and citation omitted). Distinguishing the reporting requirement at issue in Smith, the court stated
that the requirement of quarterly, in-person reporting for life “is undoubtedly a form of
significant supervision by the state.” Id. “[I]t belies common sense,” the court concluded, “to
suggest that a newly imposed lifetime obligation to report to a police station every ninety days to
verify one’s identification, residence, and school, and to submit to fingerprinting[12] and provide
a current photograph,[13] is not a substantial disability or restraint on the free exercise of
individual liberty.” Id. at ¶ 56. The Supreme Court of New Hampshire recently endorsed the
Letalien Court’s reasoning. Doe v State, 167 NH 382, 405; 111 A3d 1077 (2015).
The Supreme Court of Oklahoma adopted the same reasoning regarding its similar in-
person reporting requirements. Starkey v Oklahoma Dep’t of Corrections, 2013 OK 43, ¶ 49;
305 P3d 1004 (2013). Like defendant in the case at hand, the defendant in Starkey would have
been required, under threat of prosecution, “to make an ‘in person’ appearance every 90 days for
life and every time he moves, changes employment, changes student status, or resides
somewhere for 7 consecutive days or longer.” Id. See also MCL 28.725a(3)(c); MCL 28.725(1).
The Supreme Court of Oklahoma deemed these requirements “significant and intrusive.”
Starkey, 2013 OK at ¶ 49.
But other courts have disagreed. United States Court of Appeals for the First Circuit in
United States v Parks, 698 F3d 1, 5-6 (CA 1, 2012), held that although periodic in-person
reporting is inconvenient, such “inconvenience is surely minor compared to the disadvantages of
the underlying scheme in its consequences for renting housing, obtaining work and the like—
consequences that were part of the package that Smith itself upheld.” The United States Court of
Appeals for the Eleventh Circuit in United States v WBH, 664 F3d 848, 857 (CA 11, 2011),
likewise held that quarterly in-person reporting “may be more inconvenient, but requiring it is
not punitive.”
We agree with the reasoning of the Maine and Oklahoma courts. The reporting
requirements in Michigan are onerous. Reporting requirements vary by “tier,” and Tier III
offenders such as defendant are required to report in person four times a year for life. MCL
12
The Michigan SORA requires fingerprinting only once. MCL 28.727(1)(q).
13
Under the Michigan SORA, registrants must have a new photograph taken if “[t]he officer or
authorized employee” determines that the registrant’s preexisting photograph does not “match[]
the appearance of the individual sufficiently to properly identify him or her from that
photograph.” MCL 28.725a(5).
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28.725a(3). In addition, MCL 28.725(1) provides, in part, that all registrants must report in
person after any of the following events occur:
(a) The individual changes or vacates his or her residence or domicile.
(b) The individual changes his or her place of employment, or
employment is discontinued.
(c) The individual enrolls as a student with an institution of higher
education, or enrollment is discontinued.
(d) The individual changes his or her name.
(e) The individual intends to temporarily reside at any place other than his
or her residence for more than 7 days.
(f) The individual establishes any electronic mail or instant message
address, or any other designations used in internet communications or postings.
(g) The individual purchases or begins to regularly operate any vehicle,
and when ownership or operation of the vehicle is discontinued.
The United States Supreme Court in Smith noted that the scheme in that case did not impose a
disability or restraint because offenders were not required to report in person. Smith, 538 U.S. at
101. In contrast, under the current Michigan SORA, offenders are required to report in person
up to four times a year and after any of the events listed in MCL 28.725a occurs. Many of the
events listed in MCL 28.725a(3) may occur frequently in the life of an average person. Thus, the
in-person reporting requirements strike us as more than a mere inconvenience. Rather, we
conclude that they amount to an affirmative disability or restraint. See id.
2. HISTORICAL PUNISHMENTS
a. SCHOOL SAFETY ZONES
Some courts have concluded that school safety zones are analogous to historical
punishments. The Pollard Court stated that “restrictions on living in certain areas is not an
uncommon condition of probation or parole.” Pollard, 908 NE2d at 1151. Courts have also
compared the restrictions to banishment. “Banishment” is defined as “ ‘a punishment inflicted
upon criminals, by compelling them to quit a city, place, or country, for a specific period of time,
or for life.’ ” United States v Ju Toy, 198 U.S. 253, 269-270; 25 S. Ct. 644; 49 L. Ed. 1040 (1905)
(citation omitted). The Baker Court found that the restrictions that prevented offenders from
living in certain areas and that expelled offenders from their homes were “decidedly similar to
banishment.” Baker, 295 S.W.3d at 444. The Starkey Court concurred with that reasoning.
Starkey, 2013 OK at ¶ 60.
But other courts have denied that registration is similar to banishment. The Supreme
Court of Iowa stated that although the defendant “may have a sense of being banished to another
area of the city, county, or state,” registration did not amount to “true banishment,” which “goes
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beyond the mere restriction of ‘one’s freedom to go or remain where others have the right to be:
it often works a destruction on one’s social, cultural, and political existence.’ ” Seering, 701
NW2d at 667, quoting Poodry v Tonawanda Band of Seneca Indians, 85 F3d 874, 897 (CA 2,
1996). The court added that “[o]ffenders are not banished from communities and are free to
engage in most community activities.” Id. at 667.
We agree with the reasoning in Pollard and Baker that the restrictions created by the
school safety zone provisions resemble banishment. Unlike in Smith, registrants are
affirmatively barred from living in certain areas. Also, unless offenders are protected by the
limited grandfather provision, they can be expelled from their residences as a consequence of
registration. Although admittedly not true banishment, we find the similarity undeniable.
Further, restrictions on where an offender can live or work are common conditions of probation
or supervised release. Smith, 538 U.S. at 101. Therefore, we believe that the restrictions imposed
by the school safety zones have historically been regarded as a punishment.
b. IN-PERSON REPORTING REQUIREMENTS
Cases addressing in-person reporting requirements have focused on the similarity to
probation and parole. The Supreme Court of Indiana concluded that in-person reporting was
“comparable to conditions of supervised probation or parole.” Wallace v State, 905 NE2d 371,
376, 380 (Ind, 2009). However, the Wyoming Supreme Court disagreed that in-person reporting
requirements were similar to probation or parole, relying on Smith. Kammerer v State, 2014 WY
50, ¶ 22; 322 P3d 827 (Wy, 2014). The court denied that registration was similar to
“monitoring . . . imposed under supervised probation or parole.” Id.
Many of the considerations noted by Smith still apply to the current Michigan SORA.
Sex offenders are not required to seek permission to do many things, such as change residences
or cars, but are only required to report such changes. Also, penalties for failing to comply with
SORA arise from proceedings separate from the offender’s underlying offense. But the scheme
examined in Smith did not entail in-person reporting. As stated, defendant, as a Tier III offender,
must report in person four times each year for the rest of his life, MCL 28.725a(3)(c), as well as
upon the occurrence of any events listed in MCL 28.725(1). This is far more intrusive than the
reporting requirements in Smith and imposes a great amount of supervision by the state. We
agree with the Wallace Court that such demanding in-person reporting requirements are at least
“comparable to conditions of supervised probation or parole.” See Wallace, 905 NE2d at 380.
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3. SCIENTER
This Court has declined to consider this factor in assessing whether sex offender
registration constitutes punishment. Temelkoski, 307 Mich. App. at 262.14 We therefore decline
to address the factor. See id.
4. TRADITIONAL AIMS OF PUNISHMENT: DETERRENCE AND RETRIBUTION
a. SCHOOL SAFETY ZONES
Some courts have concluded that school safety zones promote deterrence and retribution
to such a degree that they are punitive. The court in Pollard stated that such restrictions are
“apparently designed to reduce the likelihood of future crimes by depriving the offender of the
opportunity to commit those crimes.” Pollard, 908 NE2d at 1152. The court determined that the
provision was “an even more direct deterrent to sex offenders than the . . . registration and
notification regime.” Id. The court in Baker found that such restrictions are retributive given
that there was “no individualized determination of the dangerousness of a particular registrant.”
Baker, 295 S.W.3d at 444. The court noted that “[e]ven those registrants whose victims were
adults are prohibited from living near an area where children gather.” Id. “When a restriction is
imposed equally upon all offenders, with no consideration given to how dangerous any particular
registrant may be to public safety,” the court concluded, “that restriction begins to look far more
like retribution for past offenses than a regulation intended to prevent future ones.” Id. The
court in Starkey essentially adopted the same reasoning. Starkey, 2013 OK at ¶ 66. Courts
concluding to the contrary have relied on the statement from Smith that government programs
can deter crime without imposing punishment. See, e.g., Seering, 701 NW2d at 668; Kammerer,
2014 WY at ¶¶ 26.
The primary reason for the creation of the school safety zones is the desire to specifically
deter future sexual offenses by registrants. As in Pollard, it appears that the provisions were
“designed to reduce the likelihood of future crimes by depriving the offender of the opportunity
to commit those crimes.” Pollard, 908 NE2d at 1152. Nonetheless, the disclaimer from Smith
still applies: “[a]ny number of governmental programs might deter crime without imposing
punishment.” Smith, 538 U.S. at 102. But the school safety zone provisions are unlike the statute
at issue in Smith. In that case, the Alaska statute was a passive notification scheme designed to
allow members of the public to protect themselves from sex offenders. In this case, the school
safety zone provisions are not passive. Rather, registrants are specifically prohibited them from
living, working, and loitering in many areas. We agree with the observation of the Pollard Court
that school safety zones are “an even more direct deterrent to sex offenders than the . . .
registration and notification regime.” Pollard, 908 NE2d at 1152. In sum, we find that the
foremost purpose of the school safety zones is deterrence.
14
We note that other courts have concluded that because most sex offenses require a finding of
scienter, this factor counsels in favor of deeming registration punishment. See, e.g., Doe v State,
189 P3d 999, 1012-1013 (Alas, 2008).
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However, we disagree that the school safety zones are necessarily retributive. Although
the observations of the Baker Court have some merit, we are mindful of the admonition that the
Legislature is permitted to legislate with regard to sex offenders as a class without individual
determinations of future dangerousness. See Smith, 538 U.S. at 103. It is the province of the
Legislature to determine that all sex offenders, regardless of their offenses, should be segregated
from children. While one can reasonably question the usefulness of such a broadly sweeping
measure, “[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the
nonpunitive aims it seeks to advance.” Id. Therefore, we cannot say that the school safety zones
have the purpose or effect of promoting retribution. See id.
b. IN-PERSON REPORTING REQUIREMENTS
Cases have not extensively addressed whether in-person reporting requirements promote
deterrence and retribution. The requirements are designed to ensure that the information
provided on the registry is accurate and up-to-date. Accurate and up-to-date information is
essential to “monitoring those persons” who the “legislature has determined . . . pose[] a
potential serious menace and danger to the health, safety, morals, and welfare of the people, and
particularly the children, of this state.” MCL 28.721a. Therefore, we cannot conclude that such
measures necessarily promote deterrence or retribution. Still, we acknowledge that more
rigorous reporting requirements could promote deterrence and retribution. If, for example,
offenders were required to report in person twice daily, such onerous requirements could begin
to appear less useful to promoting the regulatory goals of SORA and more like deterrence and
retribution. However, the reporting requirements are not so extreme. Tier III offenders, those
subjected to the most reporting requirements, are only required to report four times each year, as
well as upon the occurrence of any events listed in MCL 28.725(1). See MCL 28.725a(3)(c).
Although certainly burdensome for the offenders, we cannot say that these requirements promote
deterrence or retribution to such an extent that they are punitive. See id.
5. CRIMINAL BEHAVIOR
Like the United States Supreme Court, this Court has declined to consider this factor in
assessing whether sex offender registration constitutes punishment. Temelkoski, 307 Mich. App.
at 262.15 Therefore, we decline to address this factor. See id.
6. RATIONAL CONNECTION TO A NONPUNITIVE PURPOSE
As defendant admits, nearly every court has held that sex offender registration laws serve
a nonpunitive purpose of public safety. However, defendant questions whether the connection is
rational. He calls attention to law review articles that advance the proposition that registration
15
We note that the Alaska Supreme Court in Doe concluded that because registration laws only
apply to convicted sex offenders and not “other individuals who may pose a threat to society
even if they were not convicted,” the effect was punitive. Doe, 189 P3d at 1014-1015. For
example, registration laws do not apply to “defendants whose convictions are overturned for
reasons other than insufficiency of evidence of guilt.” Id. at 1015.
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laws do not reduce recidivism and that sex offenders, as a class, are not prone to recidivism.
While perhaps true that in certain circumstances the school safety zones and in-person reporting
requirements do more harm than good, we cannot conclude that they are irrational measures for
accomplishing the stated regulatory purpose of SORA. Further, we are not charged with
determining the wisdom of these measures. Such questions are for the Legislature to decide.
People v Wallace, 284 Mich. App. 467, 470; 772 NW2d 820 (2009) (noting that the wisdom of a
policy is a political question). Similarly, it is the Legislature that is charged with the authority to
revisit, if it so chooses, the efficacy of the legislation. See id.
To the extent that defendant and amicus argue that the recapture provision is not rational
as applied to defendant given that defendant’s last sex offense conviction was 25 years ago, we
must disagree. The argument has some merit, but we cannot conclude that requiring defendant
to register as a sex offender is wholly irrational. Although defendant’s sex offense conviction
was 25 years ago, he committed another felony in 2013, and has “shown a general tendency to
recidivate.” See People v Fredericks, 2014 Ill App 122122, ¶ 60; 383 Ill Dec 293; 14 NE3d 576
(2014).
7. EXCESSIVENESS
a. SCHOOL SAFETY ZONES
Some courts have held that the broad application of student safety zones is excessive.
The Supreme Court of Indiana in Pollard stated, “Restricting the residence of offenders based on
conduct that may have nothing to do with crimes against children, and without considering
whether a particular offender is a danger to the general public, the statute exceeds its non-
punitive purposes.” Pollard, 908 NE2d at 1153. The Supreme Court of Kentucky likewise
concluded that given the magnitude of the restraint imposed by residency restrictions, the lack of
individual determinations of the future dangerousness of registrants rendered the restrictions
excessive. Baker, 295 S.W.3d at 446. Other courts have concluded to the contrary. The Supreme
Court of Iowa in Seering concluded that given “the special needs of children” and “the imprecise
nature of protecting children from the risk that convicted sex offenders might reoffend,”
residency restrictions are not excessive. Seering, 701 NW2d at 668.
We find that the Supreme Court’s observations from Smith still apply. The Legislature is
“not preclude[d] . . . from making reasonable categorical judgments that conviction of specified
crimes should entail particular regulatory consequences.” Smith, 538 U.S. at 103. The Court
explained that the legislature had the power to fashion “a rule of universal application.” Id. at
104 (quotation marks and citation omitted). Further, “[t]he State’s determination to legislate
with respect to convicted sex offenders as a class, rather than require individual determination of
their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.”
Id.
One can reasonably question the usefulness of prohibiting certain offenders from living
and working within the zones even though their offenses were not committed against children.
Despite these reservations, as we have already noted, the wisdom of a statute is a question for the
Legislature. Wallace, 284 Mich. App. at 470. Moreover, the Legislature was not precluded from
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making categorical judgments of this nature. Smith, 538 U.S. at 103. Therefore, the school safety
zones prohibition is not excessive.
b. IN-PERSON REPORTING REQUIREMENTS
Courts have not extensively addressed whether in-person reporting requirements are
excessive. The Supreme Court of New Hampshire found the lifetime duration of registration to
be excessive. Doe, 167 NH at 410. “If in fact there is no meaningful risk to the public, then the
imposition of such requirements becomes wholly punitive.” Id. We disagree. Again, the
Legislature is tasked with determining the risk posed by sex offenders. Moreover, although the
in-person reporting requirements of the Michigan SORA are onerous, it is difficult to conclude
that they are necessarily excessive. Rather, as stated, they are reasonably designed to ensure that
the information on the registry is accurate and up-to-date. Therefore, the in-person reporting
requirements are not excessive.
E. CONCLUSION
1. SCHOOL SAFETY ZONES
As is apparent from our foregoing discussion, the Mendoza-Martinez factors point us in
both directions when it comes to school safety zones. We conclude that such zones impose
affirmative restraints, resemble historical punishments, and promote deterrence. However, we
also conclude that they are rationally connected to the nonpunitive purpose of public safety and
that they are not excessive, as the Legislature is permitted to make the categorical judgment that
sex offenders should not live, work, or loiter near schools. Weighing these factors, we are
mindful that the burden lies with defendant to establish that school safety zones are punitive. As
stated, a party asserting that a statutory scheme imposes punishment must provide “the clearest
proof” that the scheme “ ‘is so punitive either in purpose or effect to negate the . . . intention to
deem it civil.’ ” Earl, 495 Mich. at 44, quoting Hendricks, 521 U.S. at 361 (alteration in Earl). In
this case, given that the Mendoza-Martinez factors cut both ways, we cannot conclude that
defendant has met his burden. Further, even some of the factors that weigh in defendant’s favor
only do so to a limited extent. The zones plainly restrict where offenders can live and work, but
the restriction is not absolute, and, therefore, the restrictions are distinguishable from true
banishment. And although the zones specifically deter the registered offenders, the Smith Court
held that even a deterrent purpose will not render a civil regulatory scheme punitive. Smith, 538
U.S. at 102. Moreover, the nonpunitive purpose of the zones is the most important factor in
determining whether they are punitive in effect. See id. Given these considerations, there is not
the clearest proof that the school safety zones are so punitive in purpose or effect as to negate the
Legislature’s intent to deem them civil. See id.
2. IN-PERSON REPORTING REQUIREMENTS
Regarding the in-person reporting requirements, the Mendoza-Martinez factors do not
readily lead to one conclusion over the other. The requirements impose affirmative restraints
and arguably resemble conditions of probation and supervised release. However, they do not
necessarily promote deterrence or retribution, they are rationally connected to the nonpunitive
purpose of protecting the public by ensuring that the registry is accurate, and they are not
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excessive. As with the school safety zones, we cannot find the clearest proof that they are
punitive in effect given that the Mendoz-Martinez factors cut both ways. Further, we again find
that even some of the factors that weigh in defendant’s favor only do so to a limited extent.
Although the reporting requirements are undeniably burdensome, their restraining effect is not
absolute. Registrants are not precluded from many activities, such as changing residences or
jobs, but are merely required to report them. And many of the considerations that Smith used to
distinguish sex offender registration from probation and supervised release still apply to the in-
person reporting requirements. Moreover, the nonpunitive purpose of the zones is the most
important factor in determining whether they are punitive in effect. See Smith, 538 U.S. at 102.
Given these considerations, we conclude that there is not the clearest proof that the in-person
reporting requirements are so punitive in purpose or effect as to negate the Legislature’s intent to
deem them civil.
IV. CONCLUSION
We conclude that the recapture provision in MCL 28.723(1)(e) is constitutional. First,
the recapture provision found in MCL 28.723(1)(e) did not change the legal consequences of
defendant’s 1990 conviction. Rather, it attached legal consequences to his 2013 convictions.
Therefore, that provision does not violate the Ex Post Facto Clauses of the state and federal
Constitutions. Second, the school safety zones and in-person reporting requirements of SORA
do not constitute punishment. Therefore, they necessarily cannot constitute cruel or unusual
punishment.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Kathleen Jansen
/s/ Patrick M. Meter
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