MI Supreme Court: SORA’s “Recapture” Provision Is Unconstitutional for Nonsexual Offenses
In a unanimous decision rendered yesterday, the Michigan Supreme Court struck down a key piece of the state’s Sex Offenders Registration Act — the so-called “recapture” provision, which forced people with old, pre-1995 sex offense convictions back onto the registry decades later if they were later convicted of any unrelated felony, sexual or not.
James Ellis Jr. pleaded guilty to attempted rape in Illinois in 1983 and served his sentence — six months in jail, two years of probation. He was never required to register anywhere, because the offense predated Michigan’s registry entirely. Nearly 40 years later, in 2021, Ellis — now in his 60s — stole an $18 ribeye steak from a Walmart in Niles, Michigan, and shoved an employee who confronted him. He pleaded guilty to attempted unarmed robbery and got one to five years. As part of that sentence, the trial court also slapped him with lifetime Tier III sex offender registration — not because of the robbery, but because of the 1983 case, resurrected by MCL 28.723(1)(e), the “recapture” provision.
The Court ruled that using SORA registration as a penalty for a nonsexual crime is cruel or unusual punishment under Michigan’s constitution. Applying the four-factor test from People v Lorentzen, the Court found:
The penalty was grossly disproportionate to the offense — registering someone as a sex offender for stealing a steak, when they haven’t committed a sexual offense in 30-plus years, “exceeded any punishment that would be suitable to fit” the actual crime.
Michigan is one of only three states in the country with a recapture provision like this — the overwhelming majority of states don’t do this at all. It does nothing for rehabilitation. As the Court put it, branding someone a sex offender for conduct that had nothing to do with sex “frustrates a defendant’s ability to address the root causes of their nonsexual criminality and reintegrate into society.”
The case is remanded to the trial court to strike the registration requirement from Ellis’s sentence.
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My paper felony for Failure to Register has, under current law, taken away any realistic chance I had of ever being removed from the sex offender registry.
Before my Failure to Register conviction last year, if I had moved to Colorado as a Tier I registrant, I could have petitioned to be removed from the registry after meeting the state’s requirements. However, because Florida classifies an administrative Failure to Register as a felony related to my registration status, Colorado treats that conviction as an additional sex offense. As a result, I am no longer eligible to petition for removal.
The frustrating part is that Colorado does not even have the same type of “paper felony” for Failure to Register. In Colorado, these cases generally involve someone who absconds, leaves the state, and is later returned by law enforcement after months or even years of intentionally avoiding registration. My situation was not like that. I was attempting to comply with the registry requirements, yet my administrative offense is treated the same as someone who deliberately fled.
To make matters worse, if I had received a DUI or another unrelated offense, Colorado would not treat that as affecting my eligibility for removal from the registry. But because Florida considers an administrative Failure to Register to be an additional sex-related offense, I am permanently barred from seeking removal as a Tier I registrant.
This creates what feels like a lifetime punishment with no opportunity for rehabilitation or relief. A single administrative offense has eliminated any chance I once had to earn my way off the registry, regardless of years of compliance or positive conduct afterward.
I hope that one day the law will recognize the difference between an administrative paperwork violation and someone who intentionally evades registration. Until then, I will continue to fight for a fair opportunity to petition for removal from the registry and for laws that distinguish between technical violations and truly dangerous conduct.
Well Florida is kinda included. If you commit any offense ( sexual or not) you no longer qualify for the 25 year rule to be removed from the registery. You must register for life. Well my DUI means I have to register for life. And no, there were no sexual interactions involved.
FAC is working on a case to challenge that. It’ll be after we complete the mega one.
It would be nice if we could Rate some commenters 5 stars or less. I live in Ga. and have been told by my attorney to stay away from Fla.. Furthermore more I contribute to FAC. and Narsol on a monthly basis. People should support FAC. because they are the point of the spear. Justice can only be obtained by LOTS of MONEY.
Thanks Michael!!! Know that 100% of donations go straight to the organization (absent paypal and stripe fees), and 100% of all donations to the General Fund are going straight to the forthcoming legal challenge. All the commenters on here that you want to rate (including those labeled “FAC-XX” are volunteers) all content posters, writers of our weekly updates, researchers that are behind the scenes daily searching for news and legal decisions around the country are unpaid volunteers fighting for all of us.
The article says Michigan is one of three states with this type of recapture law. What are the other two states? Inquiring travelers want to know.
Illinois and Maryland are the primary states identified by the courts as having analogous “recapture” provisions that can force a person back onto a sex offender registry for committing an unrelated, nonsexual felony.
Link to opinion: https://www.michbar.org/Portals/0/opinions/supreme/2026/072226/86208.pdf
Yes, I’m hopeful this legal challenge opens the door to meaningful change. The reality, though, is that it could take years—possibly even a decade—before it reaches the point where we’d want it heard.
Since I’m now on the registry for life with no path to removal because of the failure-to-register conviction, I have to start thinking about what’s best for my family and where we want to build our future. Florida has become increasingly focused on surveillance and restrictive policies, with very little opportunity to challenge them, especially given the current administration’s support for those policies.
Waiting ten years for a possible Supreme Court ruling feels unfair to my family and my kids. In the meantime, Florida continues to add new restrictions almost every year, and I don’t see any reason to expect that trend to change.
Because of that, I’m still planning to move to a state where we don’t feel constantly targeted. We previously lived in Colorado Springs, and I’ve already spoken with the detective who handles registration there—the same one I dealt with before. My offense would remain a Tier I registration. A failure-to-register conviction does not automatically increase your tier unless the court specifically orders it.
Education is another major factor. In my opinion, Florida’s schools have declined and no longer meet the standards I want for my children. Coming from California, I want them to have stronger educational opportunities and better options as they grow up.
Colorado’s registration requirements are also much less burdensome. It’s generally an in-person registration around your birthday each year, and my experience was that the process was straightforward. Unlike Florida, Colorado does not require a driver’s license marking for registered sex offenders, and people can even use out-of-state identification when registering.
It’s striking that Colorado follows the federal guidelines while taking a less restrictive approach toward people who have already served their sentences.
The reality is that within a month we will have a case filed. We don’t need it to reach the supreme court in order to get relief. If we win in the trial court, the State will appeal, but at that point the relief has been granted and we just have to continue fighting to ensure an appeals court doesn’t reverse it, but all the while we will be better off.
FAC if the case is won do we stop complying or do we have wait for the exhaustion of all the appeals
If the case is won, we would likely not have to comply with the provisions of the registry that are deemed unconstitutional as of the date of the order. The Defendants can appeal and can even seek a stay pending appeal, but if a court deems a provision unconstitutional and enjoins it’s enforcement, it can’t be enforced.
This Is great news. Do know when or how soon this case will be heard and decided. I know Does I was almost 8 years.
I am still at: He was never required to register anywhere, because the offense predated Michigan’s registry entirely. How is it able to be predated in Florida?
Can anyone answer this question.
Yes. The Florida registration law is very clear. Pursuant to F.S. 943.0435(1)(a)(II), in order for an individual to be required to register, the individual must have been released from a sanction imposed for a covered sexual offense on or after October 1, 1997, which is the effective date of the original Florida sexual offender registration act (note that the requirements for sexual predator registration are different, with an earlier effective date).
This means that if a person’s sanctions were completely discharged before that date (probation ended or the individual was released from confinement with no form of post-supervised release), the individual is not required to register. If the sanctions were discharged on or after this date, then the individual is required to register. Oddly (and in my opinion unjustly), the date of the offense is not actually relevant.
This produces irrational results. Someone with a serious sexual offense who was sentenced to 25 years in prison and was released with no parole or probation on September 30, 1997 is not required to register in Florida. Yet someone with a relatively minor offense who was sentenced to six months of probation which expired on October 1, 1997 is required to register for life. In my opinion, this system is completely irrational, yet it is the law in Florida.