Legal Update No. 172 (09/2026)
Enforcement of Michigan’s Sex Offender Registration Act – People v. Smith
Summary of the Order:
On September 9, 2026, the Michigan Supreme Court (MSC) entered an order in People v Smith finding the 2021 Sex Offender Registration Act (SORA), to be an unconstitutional retroactive (i.e., ex post facto) punishment for any registrable offense committed before July 1, 2011.
The effect of this one-page order is significant. Every offender actively registered or required to be registered solely because they were convicted of a Michigan registerable offense that was committed before July 1, 2011, will be permanently removed from Michigan’s Sex Offender Registry (SOR). While the Court’s order has no effect on the validity of the underlying conviction for any removed offender – which may still be evident in original court records, prosecutor files, police reports, or the offender’s criminal history – the Court’s order nevertheless compels removal of every offender registered solely for offenses committed before July 1, 2011, regardless of the previous duration of the registration term or the severity of their underlying offense.
Officers must know that any offenders removed from the SOR because of the Court’s order have no further duty to register, report, or verify as a sex offender in Michigan, and are not in violation of any Michigan law by not doing so. Officers should also know that “removal” from the SOR as a result of the Court’s order does not simply mean the offender’s registration information will be removed from the SOR public website, but such information will be permanently removed and inaccessible to officers and registering authorities in the SOR law enforcement database.
Background and Facts
As more thoroughly described in the unpublished opinion of the Michigan Court of Appeals (COA) that was appealed to the Michigan Supreme Court, Eddie Smith was convicted in 2010 after voluntarily pleading no contest to CSC-I (MCL 750.520b) for having sexual intercourse with his 15-year-old stepdaughter in 1995, and pleading no-contest to CSC-II (MCL 750.520c) for rubbing the vaginal area of his 13-year-old biological daughter through her clothing in 2010. Smith was sentenced to 15-30 years in prison for CSC-I and 3-15 years in prison for CSC-II, respectively. Smith was required to register as a sex offender under the version of SORA in effect at that time.
In June 2023, after two prior unsuccessful attempts at an appeal and partially pursuant to the Court’s decision in People v Betts, which held that retroactive imposition of the 2011 SORA amendments violated the constitutional prohibition on ex post facto laws, Smith moved a third time for relief from judgment. The trial court denied Smith’s motion, the COA affirmed the trial court, and in the one-page order referenced above, the MSC reversed the judgment of the COA and remanded the case to the trial court “for proceedings not inconsistent with this order.”
Rationale and Holding
The Michigan Supreme Court noted that Smith committed his act of CSC-I in 1995 and committed his act of CSC-II in 2010, but he was required to register under the current version of SORA that became effective on March 24, 2021 (2021 SORA). Citing its earlier opinion in People v Kardasz to find the statutory requirements enacted after the commission of his crimes amounted to punishment, the Court held that requiring him to register under the 2021 SORA was therefore an ex post facto punishment, in violation of Art I, § 10 of the US Constitution and Article I § 10 of the Michigan Constitution.
The Court noted that for the same reasons as articulated in People v Betts regarding the 2011 SORA, the 2021 SORA may not be retroactively applied to registrants whose criminal acts subjecting them to registration occurred before enactment of the 2011 SORA amendments.
Although not stated in the Court’s order, it is worth noting that while the Court found both the 2011 SORA and 2021 SORA amounted to punishment sufficient to trigger ex post facto violations as described in Betts and Smith respectively, the COA previously ruled in People v Golba, a case the Michigan Supreme Court declined to review, that the pre-2006 SORA was not punishment. However as noted in Smith, the Court held that severance or revival of prior versions of the SORA that may have otherwise required continued registration of certain offenders for offenses committed before July 1, 2011, was “not appropriate.”
Confidentiality
As a general matter, “a registration or report is confidential and information from that registration or report shall not be open to inspection except for law enforcement purposes.” Further, the registration or report and all included materials and information are exempt from disclosure under the Freedom of Information Act, specifically under MCL 28.730(1).
Unless expressly authorized by SORA, “an individual other than the registrant who knows of a registration or report under this act and who divulges, uses, or publishes nonpublic information concerning the registration or report in violation of this act” is guilty of a 93-day misdemeanor. MCL 28.730(4). Additionally, “an individual whose registration or report is revealed in violation of this act has a civil cause of action against the responsible party for treble damages.” MCL 28.730(5).
Officers should be aware that under MCL 28.730(6), information from the public internet website described in MCL 28.728(2) or information from that public internet website that is provided or made available under MCL 28.728(2) or under MCL 28.730(2) or (3) of the SORA is exempt from the criminal and civil penalties described above. However, such exemption would not apply to officers publicly disclosing information on offenders who were previously on the SOR public internet website but who are no longer found on the public website; nor would it allow officers to publicly confirm or deny the existence of a record or continuing registration obligation for a particular offender through the non-public SOR law enforcement database, or to provide a list of offenders removed from the SOR as a result of the Court’s order.
Victim Rights
Michigan crime victims also have state constitutional rights guaranteed under the Michigan Constitution (Const 1963, art I § 24). This is in addition to the statutory rights of victims generally found in the William Van Regenmorter Crime Victim's Rights Act (CVRA) and rights available to victims of domestic violence (MCL 750.15c) and victims of sexual assault. Included in these rights is the right to “be treated with fairness and respect for their dignity,” “notification of court proceedings,” “confer with the prosecution,” and “information about the conviction, sentence, imprisonment, and release of the accused.”
Before finalizing any negotiation that may result in a plea or sentence bargain, prosecutors are required under the Michigan Constitution and MCL 780.756(3) to offer the victim the opportunity to consult with the prosecutor and to obtain the victim’s views about the proposed disposition or plea agreement. In many of these cases, the prosecutor’s offer of a specific plea or sentence bargain to a defendant in a case requiring registration under the SORA would not have been made without the express consent of the victim, including the defendant’s requirement to register as a sex offender.
While officers are legally prohibited from disclosing information or the lack of information within the non-public law enforcement database for the reasons described above, an officer may be contacted by the victim in cases previously investigated by the officer, questioning the removal of their offender from the SOR as a result of the Court’s order. In these cases, officers should direct the victim to the prosecutor’s office and victim advocates who handled the case and to private legal counsel to advise what remedies, if any, may be available to them.
As a general matter, officers are unable to advise a victim as to what remedies, if any, may be available to prosecutors and victims if an essential and material condition of a plea agreement is unable to be followed. Similarly, with respect to potential civil remedies for victims alleging criminal sexual conduct or violations of their constitutional rights, officers are unable to advise victims whether they have any potential civil claims that are not yet time-barred by statutes of limitation and should advise victims to consult with private legal counsel as quickly as possible.
Out-of-State Offenders
MCL 28.723(1)(d) of the 2021 SORA, as well as all prior versions dating back to SORA 1999, have consistently required that any person from another state, “who is required to register or otherwise be identified as a sex or child offender or predator under a comparable statute of that state,” must register under Michigan’s SORA if they move to Michigan, work in Michigan, or go to school in Michigan. This provision provides that at a minimum, Michigan will ensure “full faith and credit” is given to out-of-state convictions and registration requirements of a person identified as a “sex or child offender or predator under a comparable statute of that state,” and to ensure such offenders can’t escape their otherwise lawful registration requirements in another state by simply moving to Michigan.
These out-of-state offenders who move to Michigan are “registrants” as used in the 2021 SORA and prior versions of SORA. Therefore, any person registered in Michigan solely because they are “required to register or otherwise be identified as a sex or child offender or predator” for conduct committed in that state before July 1, 2011, is similarly required to be removed from the registry because of the Michigan Supreme Court’s order in Smith.
Officers should be aware that as a result of the Court’s order, any person currently in another state “who is required to register or otherwise be identified as a sex or child offender or predator under a comparable statute of that state” solely for conduct occurring before July 1, 2011, including lifetime registrants in that state who have committed repeated or violent sex crimes in that state, may move to Michigan, where they would no longer be subject to all the registration requirements that continue to exist in the state where the acts requiring registration occurred.
Ongoing Challenges
While the Court’s order in Smith required every offender actively registered or required to be registered solely because they were convicted of a Michigan registerable offense that was committed before July 1, 2011 to be removed from the SOR, there continues to be legal challenges to the 2021 SORA pending in the other courts that may further impact offenders required to register for offenses committed on or after July 1, 2011. These legal challenges include a federal class action lawsuit challenging the 2021 SORA that is currently on appeal to the US Circuit Court of Appeals for the Sixth Circuit. Oral arguments were held in that case on July 21, 2026, and that decision may clarify whether, and to what extent, the 2021 SORA complies with federal law and the US Constitution.
For historical context, officers should be aware that as reflected in the legislative analysis at the time, the 2011 SORA amendments (2011 PA 17) were generally intended to conform Michigan’s SORA to mandates under the federal Sex Offenders Registration and Notification Act (SORNA). As reflected in the legislative analysis at the time, the 2021 SORA amendments (2020 PA 295) were generally intended to more closely align Michigan’s SORA with the federal SORNA requirements that had consistently been upheld as constitutional in various federal circuits throughout the country and to address the specific constitutional concerns identified by the federal courts in earlier challenges to the 2011 SORA.
Additional Information
Officers are advised that if someone becomes aware of an error or issue, or reports an alleged error or issue, regarding information for an offender who remains registered for offenses committed on or after July 1, 2011, the Michigan State Police (MSP) is directing such concerns to the MSP Sex Offender Registry Unit or directing the person to contact the local law enforcement agency where the offender's registered address is located.
Officers are further advised that questions regarding potential future legislation or constitutional amendment should not be answered or advocated for, and such people should be directed to their representative or senator in the Michigan Legislature. The legislature has websites in place to help constituents and can be directed to “Find Your Senator” and to “Find Your Representative.”