Michigan’s Sex Offenders Registration Act (SORA); Constitutionality of SORA’s “recapture” provision (MCL 28.723(1)(e)); Imposition of SORA registration for a subsequent nonsexual felony; Cruel or unusual punishment; Const 1963, art 1, § 16; People v Lymon; People v Kardasz; People v Lorentzen; People v Bullock; Ripeness; Effect of the fact defendant was not currently required to register in Michigan; Whether the pre-1995 sex crime or the later nonsexual felony was the triggering offense; Judgment of sentence (JOS)

Addressing for the first time whether the 2021 SORA’s recapture provision “is unconstitutional under Michigan’s prohibition against cruel or unusual punishment[,]” the court held that imposing SORA registration requirements on those “convicted of a nonsexual offense who also have a pre-SORA sexual offense conviction is unconstitutional under the Michigan Constitution.” Defendant was convicted of attempted rape in 1983. As SORA did not become effective until 1995, he was not required to register for that conviction. In 2021, he pled guilty to attempted unarmed robbery. The trial court “imposed lifetime registration as a Tier III offender under the recapture provision of SORA,” due to the 1983 conviction. The Court of Appeals affirmed. On appeal, the court considered “the constitutionality of the recapture provision to the extent that it imposes SORA registration requirements on individuals with a listed sexual offense conviction—for which they were not required to register under SORA—who subsequently are convicted of a nonsexual felony.” It first concluded that defendant’s constitutional claims were ripe, even though he lives in another state. While “the imposition of SORA registration requirements is contingent on defendant living or working in Michigan, the application of SORA to [him] is not.” It next determined that his recent conviction was the offense that triggered the recapture provision, not the 1983 sex crime. Thus, it proceeded with a cruel or unusual punishment analysis. Lymon and Kardasz were relevant because “the recapture provision is triggered by a nonsexual criminal offense but targets a past criminal sexual conviction.” Kardasz established that the provision constitutes punishment. Applying the Lorentzen four-factor test, the court concluded “the recapture provision is grossly disproportionate as applied to defendant and those similarly situated whose registration is triggered by a nonsexual offense.” The court found it “is an excessively harsh punishment for nonsexual criminal offenses. It is disproportionate to other penalties in both Michigan and the vast majority of other jurisdictions. And it does nothing to advance the goal of rehabilitating the nonsexual criminal conduct that it punishes.” Reversed and remanded to the trial court to remove the registration requirement from defendant’s JOS.