Michigan Court of Appeals opinion in Eighth Amendment case concluding that Michigan’s SORA statute, as amended in 2021, is punitive in effect and that its punishment was cruel and unusual as applied to defendant where the offense underlying the registration requirement lacked a sexual component.
Maryland Court of Appeals opinion holding that facts which require registration as a sex offender, in light of the punitive nature of registration, must be established beyond a reasonable doubt in the adjudicatory phase of a criminal proceeding.
Pennsylvania Supreme Court opinion affirming the constitutionality of Pennsylvania's 'sexually violent predator' designations, which require additional fact-finding beyond a conviction for a sexual offense.
Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.
Oklahoma Supreme Court decides on state constitutional grounds that SOR is a punishment, cannot be applied retroactively.