Constitutionality of the Sex Offenders Registration Act (SORA); US Const, Am VIII; Const 1963, art 1, § 16; Whether 2021 SORA is criminal punishment or a civil regulation; People v Lymon; Whether 2021 SORA is cruel or unusual punishment; Tier III offenders; Lifetime electronic monitoring (LEM)

Addressing “for the first time whether the 2021 SORA constitutes punishment for all registrants[,]” the court held that given its “conclusion that the 2021 SORA is punishment but not cruel or unusual in every instance, defendant’s facial and as-applied constitutional challenges raised under the state Constitution fail. Because Michigan’s Constitution offers broader protections than the federal Constitution when assessing the proportionality of criminal punishment, it” followed that his federal claims also failed. It affirmed the Court of Appeals’ ruling “that the 2021 SORA is not cruel or unusual punishment in violation of the Michigan Constitution but” vacated its opinion to the extent that it was inconsistent with the court’s decision. It denied leave as to defendant’s claims as to LEM. He contended “that the 2021 SORA is a cruel and/or unusual punishment in violation of the state and federal Constitutions.” The court held that while “the 2021 SORA is punishment,” its requirements are not “cruel or unusual, either under the facial challenge brought here or as applied to defendant.” In considering whether the 2021 SORA constitutes punishment, the court adopted its reasoning from Lymon, “to conclude that the Legislature intended the 2021 SORA as a civil regulation.” But it determined that the only relevant “factor that points toward this legislation resembling a civil remedy is its connection to a nonpunitive purpose. In all other respects, the 2021 SORA resembles punishment. It approximates the traditional punishments of shaming and parole, burdens registrants with onerous requirements under the threat of imprisonment for noncompliance, and serves the penological goal of retribution. It is excessive in relation to its stated purpose because it imposes various duties based on unscientific groupings rather than individualized risk profiles, includes a publication requirement that may diminish its overall effectiveness in reducing recidivism, and remains operative beyond any plausible point of utility for thousands of registrants.” For all of these reasons, the court concluded “that the 2021 SORA constitutes punishment.” As to whether it was cruel and unusual punishment, it held “that the 2021 SORA is not grossly disproportionate in all instances. Therefore, we cannot conclude that the 2021 SORA is cruel or unusual punishment on its face.” The court was “similarly not convinced that Tier III registration, as applied to defendant, is cruel or unusual. Thus, his as-applied challenge also fails.”

While Justice Zahra agreed with the majority “that the 2021 SORA is not violative of state or federal constitutional prohibitions against excessive punishment,” he disagreed “with its conclusion that the 2021 SORA is a form of punishment.” Because the majority addressed this question, he concurred “in its conclusion that the 2021 SORA is not cruel or unusual punishment.” He would affirm the Court of Appeals’ judgment “as to defendant’s challenge to SORA but vacate its opinion to the extent that it held that the 2021 SORA was punishment as applied to offenders whose crimes contain a sexual component.”

Justice Bernstein concurred “with the majority’s opinion,” except that he “would have simply assumed without deciding that the 2021 SORA is punishment, given that any punishment here is not cruel or unusual.” Thus, he dissented “from Part III(B) of the majority opinion.”