On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski. Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions. However, several years later a registration requirement was enacted and applied retroactively to his case. Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment. However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.” While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment.
The Pennsylvania Supreme Court, in a divided opinion, has held the provisions of the state’s sex offender registration law (SORNA) unconstitutional under the state and federal constitutions. The majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution. The Court distinguished the Alaska registration scheme upheld by the U.S. Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and cited a number of other recent state high court holdings invalidating similarly harsh registration regimes. The Court relied heavily for its analysis on an amicus brief filed jointly by the Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (PACDL). CCRC also filed an amicus brief in support of the plaintiffs, describing the counterproductive effects of such registration schemes. The concurring and dissenting opinions are posted here and here.
A full analysis of the holding and of the concurring and dissenting opinions will follow shortly.
The Ohio Supreme Court is considering whether a young man whose conviction requires him to register as a sex offender should be excused from this collateral consequence on grounds that it violates the state constitution’s prohibition on cruel and unusual punishment. The transcript of the March 10 oral argument in Blankenship v. State of Ohio, Case no. 2014-0363, suggests that the Ohio high court may be poised to invalidate the mandatory sex offender classifications in Ohio law as applied to a 21-year-old who had a consensual sexual relationship with a 15-year-old. In 2011 the court ruled in State v. Williams that the state’s registration scheme is punitive and thus may not constitutionally be applied retroactively, so it would be a short step for the court to find that the mandatory registration requirement constitutes cruel and unusual punishment in this case.