Chapter 9: Sex Offenders Registration Act (SORA)

Part I—Introduction

9.1Sex Offenders Registration Act (SORA)¹

A.Purpose

The purpose of the SORA is stated in MCL 28.721a:

“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 [the SORA] 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 [the SORA] 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.”²

B.Constitutionality

1.Retroactive Application of 2011 Registration Requirements Violates Prohibition Against Ex Post Facto Laws ³

“[T]he retroactive application of Michigan’s Sex Offenders Registration Act . . . , as amended by 2011 PA 17 and 18 (the 2011 SORA), violates state and federal constitutional prohibitions on ex post facto laws.” People v Betts, 507 Mich 527, 533 (2021).⁴ See US Const art I, § 10; Const 1963, art 1, § 10. Specifically, “the 2011 SORA may not be retroactively applied to registrants whose criminal acts subjecting them to registration occurred before the enactment of the 2011 SORA amendments.” Betts, 507 Mich at 573-574.⁵

The defendant in Betts pleaded guilty to CSC-II in 1993, two years before the SORA took effect. Id. at 527, 536. Amendments to the SORA, effective in 2011, increased a defendant’s duties related to SORA registration and expanded the scope of information a defendant was required to provide to the proper law enforcement agency. Id. at 537. After completing his parole, the defendant failed to comply with the registration requirements of the SORA made applicable to him as a result of his 1993 conviction. Id. at 536. The Betts Court explained that “the 2011 SORA’s aggregate punitive effects negate the state’s intention to deem it a civil regulation.” Id. at 562. The Court concluded: “[T]he retroactive imposition of the 2011 SORA increases registrants’ punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws.” Id.

2.Retroactive Application of 2021 Requirements to CSC Offenders Does Not Constitute Punishment or Violate Ex Post Facto Clauses of Federal or Michigan Constitutions

The 2021 amendments to SORA do not violate the Ex Post Facto Clauses of the United States and Michigan Constitutions (US Const, art I, § 10, and Const 1963, art 1, § 10, respectively) when applied to first-degree criminal sexual conduct (CSC-I) offenders People v Kiczenski, ___ Mich App ___, ___ (2024). Defendant was convicted of two counts of CSC-I for a sexual assault committed in 1980 and sentenced as a habitual offender to two concurrent terms of 35 to 100 years. Id. at ___. Defendant filed a motion based on Betts to preclude him from having to register under the 2011 SORA registration requirements. The trial court denied defendant’s motion. Kiczenski, ___ Mich App at ___. According to the court, although the 2011 SORA did not apply to defendant, the 2021 SORA amendments enacted in light of Betts to cure the constitutional defects of the 2011 SORA did apply to defendant. Id. at ___. Defendant appealed, claiming that the 2021 SORA still violated the Ex Post Facto Clauses of the United States and Michigan Constitutions by increasing the punishment for a crime already adjudicated. Id. at ___.

“‘[T]he Legislature intended the 2021 SORA as a civil regulation.’” Id. at ___, quoting People v Lymon, ___ Mich ___, ___ (2024). “Therefore, the 2021 SORA can only be considered punishment if the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Kiczenski, ___ Mich App at ___ (cleaned up). “[W]hether the 2021 SORA constitutes punishment for sexual offenders [depends] on an analysis specific to them, using the factors outlined in [Kennedy v Mendoza-Martinez, 372 US 144, 168-169 (1963)^[⁶].” Kiczenski, ___ Mich App at ___. The fourth—and most important—of the five most relevant Mendoza-Martinez factors identified by the Michigan Supreme Court is “whether the statute has a rational connection to a nonpunitive purpose[.]” Kiczenski, ___ Mich App at ___ (quotation marks and citation omitted).

“[T]he Lymon Court described the Legislature’s purpose in enacting SORA as preventing future criminal sexual acts and ensuring public safety from particularly dangerous individuals.” Id. at ___. The Lymon Court found that including “certain non-sexual offenses did rationally address this purpose” such that factor four weighed against finding that the 2021 SORA was punishment. Kiczenski, ___ Mich App at ___. “Because the rational connection to the nonpunitive purpose is more apparent than in Lymon, factor 4 weighs strongly against the 2021 SORA being considered punishment for sexual offenders.” Kiczenski, ___ Mich App ___.⁷ “[T]herefore, . . . there is no ex post facto violation.” Id. at ___ (affirmed).

3.Application of Sex Offenders Registration Act (SORA) to Non-Sexual Offenders Constitutes Cruel or Unusual Punishment

“Although the 2021 SORA^[⁸^]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.” People v Lymon, ___ Mich ___, ___ n 6 (2024). “Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders.” Id. at ___. Further, “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.” Id. at ___.

The defendant in Lymon was subject to SORA due to two convictions for unlawful imprisonment (MCL 750.349b)⁹ involving minors —a tier I offense under MCL 28.722(r)(iii). Unlawful imprisonment “is one of only three offenses for which a conviction does not necessarily require commission of a sexual act that results in placement on the sex-offender registry.”Lymon, ___ Mich at ___. The other offenses are accosting, enticing or soliciting a minor under MCL 750.145a (MCL 28.722(t)(i)), and kidnapping a minor under MCL 750.349 (MCL 28.722(v)(ii)). Lymon, ___ Mich at ___. For more information on these offenses, see Section 3.15, Section 3.21, and Section 3.25.

4.Registration Has a Legitimate Purpose

Note: Some cases holding that the SORA was not punitive were decided before the effective date of 2011 PAs 17 and 18, which enacted the provisions of the SORA considered by People v Betts, 507 Mich 527 (2021), and determined to be punitive. In People v Lymon, ___ Mich ___, ___ (2024), the Court held that the 2021 amendments to SORA constituted cruel or unusual punishment when applied to non-sexual offenders.

The 2021 amendments to SORA are rationally connected to a nonpunitive purpose.” People v Kiczenski, ___ Mich App ___, ___ (2024) (affirming the trial court’s denial of defendant’s motion to find unconstitutional under Betts the retroactive application of the 2021 SORA). “[T]he Lymon Court described the Legislature’s purpose in enacting SORA as preventing future criminal sexual acts and ensuring public safety from particularly dangerous individuals.” Id. at ___. “[P]ublic safety is a quintessentially legitimate justification, and these [sex offender] registries are no doubt connected to that goal.” Id. at ___ (cleaned up).

The judicial fact-finding that occurs before a court orders a defendant to register under the SORA does not violate the Apprendi-Blakely ¹⁰ rule:

“First, SORA does not impose a penalty in the form in which criminal statutes generally express maximum penalties. That is, SORA does not affect a person’s liberty by imposing additional confinement beyond the statutorily authorized maximum penalty. Nor does SORA improperly deprive a person convicted of a listed offense of property by imposing an additional fine beyond the statutorily authorized maximum penalty. Second, the prior decisions of this Court, which we must follow, and the federal courts’ analyses that this Court has adopted have concluded that SORA does not impose a penalty or punishment as a sanction for a criminal violation . . . . Rather, SORA is a remedial regulatory scheme furthering a legitimate state interest of protecting the public; it was not designed to punish sex offenders. Consequently, we conclude that judicial fact-finding in applying SORA does not violate [a] defendant’s constitutional rights to a jury trial and due process of law[.]” People v Golba, 273 Mich App 603, 620 (2007) (citations omitted).¹¹

5.Due Process

The SORA does not violate a defendant’s due process rights. People v Golba, 273 Mich App 603, 619-620 (2007).¹² According to the Golba Court:

“A defendant does not have a legitimate privacy interest in preventing the compilation and dissemination of truthful information that is already a matter of public record. Further, SORA does not violate a defendant’s substantive due process rights. SORA ‘advances a legitimate government interest in protecting the community by promoting awareness of the presence of convicted sex offenders from whom certain members of the community may face a danger.’” Golba, 273 Mich App at 619-620, quoting Akella v Mich Dep't of State Police, 67 F Supp 2d 716, 733 (ED Mich, 1999) (citations omitted).

See also In re Tiemann, 297 Mich App 250, 268 (2012) (“Because the effects of SORA do not implicate a liberty or property interest, the Due Process Clause does not provide [a defendant] with procedural safeguards[;] any safeguards would be those afforded by the statute.”).

But see People v Temelkoski, 501 Mich 960, 961 (2018). The Supreme Court stated: “Because defendant pleaded guilty on the basis of the inducement provided in HYTA^[¹³^] as effective in 1994 (i.e., before SORA’s effective date), was assigned to HYTA training by the trial judge, and successfully completed his HYTA training, retroactive application of SORA deprived defendant of the benefits under HYTA to which he was entitled and therefore violated his constitutional right to due process. US Const, Am XIV; Const 1963, art 1, § 17.” Temelkoski, 501 Mich at 961. Rather, the defendant would have a conviction on his record, would have been required to register under the SORA, and would be obligated to satisfy the duties mandated of SORA registrants, a consequence of the SORA’s amendment and its application to the defendant. Id. According to the Court, that outcome was unjust considering that assignment to HYTA status prompted the defendant to plead guilty; the defendant pleaded under circumstances giving him the opportunity to benefit from HYTA and avoid such consequences as having a conviction on his record and being made to comply with SORA. Id.

6.Cruel or Unusual Punishment

a.SORA Is Not a Punishment

“At the end of the Mendoza-Martinez^[¹⁴^] inquiry, [a court] must answer whether [a] defendant has demonstrated by the clearest proof that the 2021 SORA is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” People v Kiczenski, ___ Mich App ___, ___ (2024) (quotation marks and citations omitted). “Limiting the class of offender to those with CSC-I convictions, defendant has failed to carry that high burden.” Id. at ___.¹⁵

“SORA does not impose a penalty or punishment as a sanction for a criminal violation.” People v Golba, 273 Mich App 603, 620 (2007). “Rather, SORA is a remedial regulatory scheme furthering a legitimate state interest of protecting the public[.]” Id. at 620.¹⁶

b.SORA Is a Punishment (Cruel or Unusual Not Considered)

“Considering the Mendoza-Martinez factors cumulatively, the 2011 SORA’s aggregate punitive effects negate the state’s intention to deem it a civil regulation.” People v Betts, 507 Mich 527, 562 (2021) (citation omitted.)¹⁷ The Betts Court concluded: “[T]he retroactive imposition of the 2011 SORA increases registrants’ punishment for their committed offenses in violation of federal and state constitutional prohibitions on ex post facto laws.” Id.¹⁸

c.SORA Is Punishment But Not Cruel or Unusual

“To determine if a punishment is cruel or unusual, a court must consider whether it is ‘grossly disproportionate.’” People v Lymon, ___ Mich ___, ___ (2024), citing People v Bullock, 440 Mich 15, 34 n 17 (1992). “To evaluate whether a punishment is ‘grossly disproportionate,’ a reviewing court must consider four factors: (1) the harshness of the penalty compared to the gravity of the offense; (2) the penalty imposed for the offense compared to the penalties imposed for other offenses in Michigan; (3) the penalty imposed for the offense in Michigan as compared to the penalty imposed for the same offense in other states; and (4) whether the penalty imposed advances the goal of rehabilitation.”Lymon, ___ Mich at ___ (2024), citing Bullock, 440 Mich at 33-34.

•Lifetime Registration for a Convicted CSC-I Offender

“SORA’s lifetime-registration requirement is not unjustifiably disproportionate” where defendant was convicted of two counts of first-degree criminal sexual conduct and one count of unlawful imprisonment based on the use of nonphysical force to support the element of restraint.¹⁹ People v Jarrell, 344 Mich App 464, 467, 487 (2022). “[Defendant did] not establish[] plain constitutional error in his as-applied challenge that the requirements of SORA violate[d] the Michigan Constitution’s prohibition on cruel or unusual punishment.” Id. at 487.

•Lifetime Registration for a Convicted CSC-I Juvenile Offender

Relying on Jarrell, the Court of Appeals concluded that three of the four Bullock factors “strongly support” that SORA’s mandatory lifetime registration requirement is “neither cruel nor unusual” on its face when imposed on a juvenile convicted by plea of second-degree criminal sexual conduct. People v Malone, ___ Mich App ___, ___ (2023). To succeed, a facial challenge to a statute’s constitutionality requires a showing that there are no circumstances under which the statute would be valid. Id. Mandatory punishments under Michigan law are not rare and are not invalid simply because the defendant is a juvenile at the time the mandatory sentence is imposed. Malone, ___ Mich App at ___.

d.SORA is Cruel or Unusual Punishment When Imposed on Non-Sexual Offenders

“[T]he punishment of SORA registration for non-sexual offenders like defendant [who was convicted of unlawful imprisonment involving a minor] is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution.”²⁰ People v Lymon, ___ Mich ___, ___ (2024). “[D]efendant and other offenders whose crimes lacked a sexual component^[²¹^] are entitled to removal from the sex-offender registry.” Lymon, ___ Mich at ___.

7.No Right of Confrontation

“[B]ecause SORA is a regulatory statute and not a criminal statute, a ‘criminal prosecution’ is not at issue and neither [the state nor the federal] Confrontation Clause applies.” In re Tiemann, 297 Mich App 250, 256-257, 266, 269-270 (2012) (rejecting the 15-year-old respondent’s contention that his “Sixth Amendment right of confrontation was violated when [he] was not allowed to cross-examine [the 14-year-old victim]” during a hearing to determine whether the victim consented to the sexual contact, and thus whether the respondent was excused from SORA registration requirements).

C.Rule in Betts ²²That Retroactive Application of 2011 Registration Requirements Violated Prohibition Against Ex Post Facto Laws Does Not Apply Retroactively

1.Federal Law Does Not Mandate Retroactive Application of Betts ²³

“The first step in the federal analysis of retroactivity is whether the decision created a new rule.” People v Shaver, ___ Mich App ___, ___ (2024) (quotation marks and citations omitted). “Betts announced a new rule because Michigan courts before Betts consistently rejected ex post facto challenges to SORA on the ground that the registration requirements of the act were not considered punishment, but a civil remedy.” Id. at ___. “Given the state of the law at the time defendant’s conviction became final, no state court considering the claim could have felt compelled by existing precedent to grant [defendant’s motion for relief from judgment].” Id.

New rules are generally not applied retroactively, unless the rule is either a “substantive rule of constitutional law,” or a “‘watershed rule’ of criminal procedure.” Id. at ___ (citations omitted). First, “Betts’s categorization of the 2011 SORA as punitive does not make it a substantive rule of constitutional law,” because it is not “‘a rule forbidding certain primary conduct or a rule prohibiting a certain category of punishment for a class of defendants because of their status or offense.’” Id. at ___ (citation omitted). Second, “application of the 2011 SORA to [defendant] did not create an impermissibly large risk of an inaccurate conviction or alter the fairness of the proceedings concerning his failure-to-register conviction,” nor did Betts “establish a procedural rule because its application has no bearing on the process through which criminal convictions are obtained.” Id. at ___.

Therefore, “[f]ederal law does not mandate retroactive application because Betts create[d] a new rule, Betts d[id] not prohibit a certain class of primary conduct, and Betts d[id] not establish a watershed rule of criminal procedure.” Id. at ___.

2.State Law Does Not Mandate Retroactive Application of Betts ²⁴

Retroactivity under state law must also be considered because “[a] state may accord broader effect to a new rule of criminal procedure than federal retroactivity jurisprudence accords.”People v Shaver, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted; alteration in original). Michigan’s “state-law test” for retroactive application of new rules established by caselaw requires courts to “consider: (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice.” Id. at ___ (quotation marks and citations omitted).

“Under the purpose prong, a law may be applied retroactively when it concerns the ascertainment of guilt or innocence; however, a new rule of procedure which does not affect the integrity of the fact-finding process should be given prospective effect.” Id. at ___ (quotation marks and citation omitted). The purpose prong is the “most important factor,” and its analysis is similar to that of the “watershed exception” under federal law. Id. (quotation marks and citation omitted). Because application of the new rule in Betts “is not going to impact the chances of a wrongful conviction,” the purpose prong “weighs in favor of prospective application.” Id. at ___-___.

The second prong (extent of reliance on old rule) and third prong (new rule’s effect on administration of justice) are often considered together “[b]ecause the amount of past reliance will often have a profound effect on the administration of justice.” Id. at ___. “While . . . there was broad reliance on the prior rule, . . . the toll that retroactive application of Betts would have on the administration of justice[ is unknown].” Id. at ___. Retroactive application of the new Betts rule “would apply to an entire class of criminal convictions that were committed and finalized between 2011 and 2021, so it is clear that this would cause some strain on the administration of justice,” due to the “valid reliance upon the 2011 SORA.” Id. at ___. “[G]iven the information available, . . . the second and third factors weigh[] slightly against retroactive application.” Id. at ___. Therefore, “Michigan’s standard for retroactive application of judicial decisions weighs against retroactive application of Betts.”

¹The content of Michigan’s Sex Offenders Registration Act (SORA) closely mirrors, but does not exactly duplicate, the federal Sex Offender Registration and Notification Act (SORNA). “[SORNA] establishes national standards for sex offender registration and notification in the United States. SORNA has a dual character, imposing registration obligations on sex offenders as a matter of Federal law that are federally enforceable under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250, and providing minimum national standards that non-Federal jurisdictions are expected to incorporate in their sex offender registration and notification programs . . . .” Registration Requirements Under the Sex Offender Registration and Notification Act, 86 Fed Reg 69856 (December 8, 2021). The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.

² Effective July 1, 2011, PAs 17 and 18 made significant changes to the SORA in an effort to further comply with SORNA. However, “the fact that the 2011 Legislature did not amend SORA to create an identical statutory scheme to SORNA and instead included several additional provisions indicates that the Legislature was, at the very least, not motivated solely by a desire to conform to SORNA.” People v Betts, 507 Mich 527, 570-571 (2021). Federal guidelines discussing in detail the application and scope of SORNA requirements were published in the Federal Register for December 8, 2021 and became effective on January 7, 2022. See Registration Requirements Under the Sex Offender Registration and Notification Act, 86 Fed Reg 69856 (December 8, 2021). The link to this resource was created using Perma.cc and directs the reader to an archived record of the page. Some provisions included in the 2022 federal guidelines for SORNA differ from similar such provisions in the SORA, and it is unknown how those guidelines might affect the content or application of the SORA.

³Effective July 1, 2011, PAs 17 and 18 made significant changes to Michigan’s Sex Offenders Registration Act (SORA) in an effort to further comply with the federal Sex Offender Registration and Notification Act (SORNA). Federal guidelines discussing in detail the application and scope of SORNA requirements were published in the federal register for December 8, 2021 and became effective on January 7, 2022. See Registration Requirements Under the Sex Offender Registration and Notification Act, 86 Fed Reg 69856 (December 8, 2021). The link to this resource was created using Perma.cc and directs the reader to an archived record of the page. Some provisions included in the 2022 guidelines for SORNA differ from similar such provisions in the SORA, and it is unknown how those federal guidelines might affect the content or application of the SORA.

⁴Effective July 1, 2011, PAs 17 and 18 made significant changes to the SORA in an effort to further comply with SORNA. However, “the fact that the 2011 Legislature did not amend SORA to create an identical statutory scheme to SORNA and instead included several additional provisions indicates that the Legislature was, at the very least, not motivated solely by a desire to conform to SORNA.” People v Betts, 507 Mich 527, 570-571 (2021). Federal guidelines discussing in detail the application and scope of SORNA requirements were published in the Federal Register for December 8, 2021 and became effective on January 7, 2022. See Registration Requirements Under the Sex Offender Registration and Notification Act, 86 Fed Reg 69856 (December 8, 2021). The link to this resource was created using Perma.cc and directs the reader to an archived record of the page. Some provisions included in the 2022 federal guidelines for SORNA differ from similar such provisions in the SORA, and it is unknown how those guidelines might affect the content or application of the SORA.

⁵The eastern division of the federal district court and the Sixth Circuit Court of Appeals were faced with challenges to the retroactive application of Michigan’s SORA before Betts was decided. People v Betts, 507 Mich 527 (2021). See Does #1-5 v Snyder (Does I), 834 F3d 696 (CA 6, 2016), and Does v Snyder (Does II), 449 F Supp 3d 719 (ED Mich, 2020). Federal challenges have also followed the Betts decision, the 2021 amendments enacted in 2020 PA 295, and the People v Lymon, ___ Mich ___ (2024) decision regarding the SORA’s application to non-sex offenses. See Does v Whitmer (Does III), opinion and order of the United States District Court for the Eastern District of Michigan, issued September 27, 2024 (Case No. 22-cv-10209), where the federal district court granted summary disposition to the Does III plaintiffs on their ex post facto claims (based on the Betts decision), their non-sex offense claims (based on the Lymon decision), their challenges to the SORA’s application to people with out-of-state convictions, and their First Amendment challenge to the 2021 internet-identifier reporting requirements. The federal district court rejected the plaintiffs’ assertion that all sex offenders are entitled to an individualized hearing under all circumstances. The Does III court directed the parties to meet and confer on issues it noted in its opinion and to “file a joint statement . . . setting forth their points of agreement and disagreement regarding each one.” Does III, ___ F Supp 3d ___ (2024). Note, however, that decisions of lower federal courts, although they may be persuasive, are not binding on Michigan courts. See People v Bosca, 310 Mich App 1, 76 n 25 (2015); People v Gillam, 479 Mich 253, 261 (2007); Abela v Gen Motors Corp, 469 Mich 603, 606-607 (2004).

⁶All of the factors are set forth in Kennedy v Mendoza-Martinez, 372 US 144, 168-169 (1963). The factors are used to determine whether a statute constitutes a punishment. “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Id. (Quotation marks omitted.)

⁷The Kiczenski Court distinguished its holding that the 2021 SORA is not punishment from the contrary holding in Does III. Both courts agreed that “there is no unanimity in the literature on the efficacy of sex-offender registries on recidivism, and that SORA is rationally connected to a non-punitive purpose.” Kiczenski, ___ Mich App at ___ (citations omitted). However, the Kiczenski Court asserted that the Does III Court did not give “the weight factor 4 is required to receive, . . .” Kiczenski, ___ Mich App at ___. “[A] finding of a rational connection to a non-punitive purpose goes a long way . . . towards finding a regulation not being punishment, nor excessive.” Id. at ___.

⁸2020 PA 295 amended the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., effective March 4, 2021, while the Michigan Supreme Court was considering the ex post facto challenge in People v Betts, 507 Mich 527 (2021); however, the 2021 amendments were not at issue in Betts. People v Lymon , ___ Mich ___, ___ n 3 (2024).

¹⁰ The Apprendi-Blakely rule requires a court to submit to a jury to determine beyond a reasonable doubt “any fact that increases the penalty for a crime beyond the prescribed statutory maximum[.]” Apprendi v New Jersey, 530 US 466, 490 (2000); Blakely v Washington, 542 US 296, 301 (2004).

¹⁴These are the factors set forth in Kennedy v Mendoza-Martinez, 372 US 144, 168-169 (1963), for determining whether a civil regulation constitutes a punishment. “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Id. (Citations omitted.)

¹⁵For more information on the constitutionality of the retroactive application of the 2021 SORA to CSC-1 offenders, see Section 9.1(B)(2).

Kiczenski challenged SORA under an ex-post-facto argument (see Section 9.1(B)(2)), rather than the cruel-and-unusual-punishment argument made in People v Lymon, ___ Mich ___ (2024) (see Section 9.1(B)(6)). However, “in determining whether a statute imposes a criminal punishment, which is all either prohibits, the standard is the same.” Kiczenski, ___ Mich App at ___ n 4.

¹⁷Although the 2021 amendments to the SORA enacted by 2020 PA 295 were in effect when Betts was decided, only the 2011 amendments to the SORA by PAs 17 and 18 were at issue in Betts; the Betts Court “did not offer any analysis as to the 2021 SORA.” People v Lymon, ___ Mich ___, ___ n 2 (2024).

¹⁹ “[T]he restraint element can be satisfied by evidence of nonphysical force that involves a credible threat of harm . . . .”

²⁰The Lymon Court evaluated the constitutionality of the 2021 amendments to the SORA enacted by 2020 PA 295, effective March 24, 2021, and it referred to the statute as “the 2021 SORA.” Lymon, ___ Mich at ___. The 2021 SORA was in effect when People v Betts, 507 Mich 527 (2021) was decided, however, only the 2011 amendments to the SORA by PAs 17 and 18 were at issue in Betts; the Betts Court “did not offer any analysis as to the 2021 SORA.” Lymon, ___ Mich at ___ n 2.

²¹The Lymon Court identified three offenses subject to the SORA that do “not necessarily require commission of a sexual act that results in placement on the sex-offender registry”: accosting, enticing or soliciting a minor under MCL 750.145a, MCL 28.722(t)(i); kidnapping involving a minor under MCL 750.349, MCL 28.722(v)(ii); and unlawful imprisonment involving a minor under MCL 750.349b, MCL 28.722(r)(iii). Lymon, ___ Mich at ___. For more information on these offenses, see Section 3.15, Section 3.21, and Section 3.25, respectively.

²²People v Betts, 507 Mich 527 (2021). For more information on the rule established in Betts, see Section 9.1(B)(1).

²³People v Betts, 507 Mich 527 (2021). For more information on the rule established in Betts, see Section 9.1(B)(1).

²⁴People v Betts, 507 Mich 527 (2021). For more information on the rule established in Betts, see Section 9.1(B)(1).