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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The so-called recapture provision is apparently a trap to put pre-registration felons on to the registry in an utterly absurd, ridiculous manner.
I would call it ‘stupid and ludicrous’ punishment!!
This is great news. Not that it effects Florida, but I listened to the arguments and I thought Ellis Was cooked. Glad he is not on the hit list. I am in no way dismissing the theft of the steak or assault but the label would be horrible. Also noted that the court said putting him on the registry would be punishment. Oh really?
Wake up Florida
Florida have some pretty messed up interpretations of how the term sexual battery is applied and what exactly is a sex offense I believe the federal definition says there has to be some genital to genital contact or penetration. Yet I’ve seen charges of attempted sexual battery with no violence or little no force, depending on how you read it for offenses such as what should be classified as a groping charge a touch on the outside of a person breast, I still never understood how that could legally be an attempted sexual battery. You either battered somebody or you didn’t I don’t even understand the attempt statue. I have something similar and attempt battery charge on an adult with no force yet I’m on the registry for Life
But wait, isn’t the registry simply a civil means of keeping track of certain people, not a “penalty” or “punishment” as we’ve been told time and time again? Yet, here the court is ruling the registry is cruel and unusual punishment for this case. I’m confused. Is the registry punishment or not?
The Michigan Supreme Court has previously ruled that the Michigan registry is punishment.
So could this help with what I try post earlier in the argument maybe for the Eight amendment and maybe getting to Supreme Court for us
Ryan. It could be considered persuasive precedent, but our case is (a) in Federal Court (this is State) and (b) this is not our state. In the MI case, the trigger for registration was tied to a non-sexual case. In our situation it’s tied to a sexual offense. Completely different animal. I understand the line of thinking that the court saw registration punitive in a case where the guy was arrested for stealing a steak, but it would probably be considered punitive to put someone on the registry here for a DUI. However, as applied to someone convicted of a sex offense… See where I’m going?
We also discourage proposing legal arguments here because it confuses other readers and if someone is off base (not you, but anyone – and we get a lot of AI hallucinations), it might give someone the idea that they should file something Pro Se in their case and then every registrant gets stuck with bad precedent.
FAC is VERY WELL REPRESENTED in our pending challenge! The arguments are set.
So it’s punishment but not punishment..what an interesting linguistic experience in mental gymnastics..