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.