Post-Kardasz challenges to Michigan’s sex offender registry

Criminal Defense Newsletter | January-February 2026

Our Supreme Court’s latest word on the sex offender registry provides a needed stepping stone for future challenges to this counterproductive law, albeit not as big of a step as we had hoped it would be. The Court’s decision in Kardasz1 rounds out a holding it started two terms ago with Lymon. Where the Court previously held that the Sex Offenders Registration Act (SORA), as amended in 2021,2 is criminal punishment when applied to offenses that were not sexual in nature,3 the Court now confirms that the 2021 SORA is criminal punishment in all its applications and, therefore, subject to the constitutional protections that come with that label.

Regrettably, the Court declined to hold that the 2021 SORA is facially cruel or unusual punishment. The Court concluded that a lifetime of registration was not grossly disproportionate under the Michigan Constitution to the seriousness of Mr. Kardasz’s first-degree criminal sexual conduct conviction. As a result, Mr. Kardasz’s facial challenge under the state and federal constitution also failed.

But Mr. Kardasz cleared the way for the same and other challenges for clients who are being required to comply with SORA.

The biggies: Cruel and/or unusual punishment and ex post facto

To start, the Kardasz Court gave us some suggestions for future challenges under the Cruel and/or Unusual Punishment Clauses. The Court made clear that it was conducting an as-applied analysis for a Tier III offense, which it characterized as “the most severe registrable offenses and are subject to the most onerous requirements under the 2021 SORA.”4 Notably, Mr. Kardasz’s conviction involved conduct against his five-year-old daughter. This leaves room for others in Tier III and those in Tier I and Tier II to argue their registration requirements are grossly disproportionate to their less serious conduct.

Another suggestion from the Kardasz Court was to show the registration requirement was excessive based on individual risk. The Court highlighted the mandatory nature of SORA, drawing a comparison to mandatory life without parole for youthful offenders that the Court recently struck down,5 and noted that many states use risk assessments to classify registrants.6 But because Mr. Kardasz “was recently incarcerated and has not presented evidence of his individual risk of reoffending,” the Court concluded this did not favor a finding of gross disproportionality for him.7 

Future challenges may benefit from specific evidence of a lack of risk, such as a Static-99R evaluation.

The Court’s holding that the 2021 SORA is criminal punishment also opens the door for ex post facto challenges to the retroactive application of the statute to offenses committed before the 2021 SORA became effective. The Ex Post Facto Clauses prevent the Legislature from increasing the punishment for an offense after the offense has already been committed. In Betts, the Supreme Court recognized that the 2011 amendments to SORA turned SORA into a punishment and, therefore, could not be applied retroactively to those whose offenses were committed before the 2011 SORA took effect.8 This same challenge can be made to the 2021 SORA based on the increase in reporting requirements from the 2011 SORA that the Betts Court helpfully identified.9 

The Supreme Court recently passed on an opportunity to decide this issue because of procedural peculiarities in Klinesmith,10 but it will hopefully take it up again soon with Ellis.11 

For some listed offenses, watch for judicial fact-finding

We are all familiar with Apprendi and Alleyne: “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.”12 The Court of Appeals previously held that Apprendi was not applicable to SORA because it was not a criminal punishment.13 But this was under the 2006 version of SORA. In light Kardasz, Apprendi, and Alleyne apply to the 2021 SORA.

Most clients will not gain much protection from Apprendi/Alleyne. The vast majority of “listed offenses” are defined solely by the offense of conviction, which makes SORA a straightforward mandatory minimum supported by the jury’s finding of guilt or the guilty plea. But there are some listed offenses that require more than the underlying offense.

Minor victim. These listed offenses require a finding that an offense occurred where “a victim is a minor.” They include indecent exposure, surveilling an unclothed person, solicitation, kidnapping, unlawful imprisonment, and leading away a child. Note that the last three offenses noted will run afoul of Lymon unless the jury finds that the offense involved sexual conduct.

Other than leading away a child, which has as an element that the child be under the age of 14, these offenses do not require a finding that the victim is a minor. Accordingly, that fact must be submitted to a jury or pleaded to separate from the underlying offense for the client to be required to register.

Age of victim. These listed offenses require a finding that the victim’s age fell within a certain range, such as less than 13 years or between 13 and 17 years. They include each degree of criminal sexual conduct, assault with intent to commit criminal sexual conduct, and gross indecency.

These offenses often have the age of the victim as an element, but not always. If age is an element of the underlying offense and that age necessarily satisfies the requirements to be a listed offense, registration would not violate Apprendi/Alleyne. If age is not an element of the underlying offense, age must be separately submitted to the jury or pleaded to.

Miscellaneous. This leaves four listed offenses that don’t fit into the other two categories: (1) an offense committed by a person who was, at the time of the offense, a sexually delinquent person as defined by MCL 750.10a; (2) an attempt or conspiracy to commit another listed offense; (3) an offense substantially similar to another listed offense under a law of the United States that is specifically enumerated in 34 USC 20911, under a law of any state or any country, or under tribal or military law; and (4) any other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is a minor (the catchall provision).

Whether an attempt or conspiracy requires additional fact-finding depends on the underlying completed offense. The remaining miscellaneous listed offenses would likely require additional fact-finding. Notably, the catchall provision requires two factual findings: the offense must “by its nature constitute a sexual offense” and the offense must be “against an individual who is a minor.” Each requires looking to the particular facts of the sentencing offense.14 

Relatedly, there are three listed offenses (in the “age of victim” category) for which the Legislature created Romeo and Juliet exceptions to registration that depend on the age of the victim, age of the client, and consent.15 Although MCL 28.723a directs that these issues should be submitted to the sentencing judge, Apprendi/Alleyne requires that they be decided by the jury or supported by plea.

A few more challenges to consider

Other challenges that already have support in the caselaw bear repeating and are, in some instances, more persuasive with SORA recognized as punishment:

  • Registration must be completed before sentencing; the court cannot add it later without complying with MCR 6.429 regarding correcting invalid sentences.16 
  • SORA is either a “term of the sentence” or one of the “conditions incident to the sentence.” Accordingly, MCR 6.427 requires that SORA registration be included in the judgment of sentence.17 If a client has been registered but SORA was not included in the judgment, a motion to enforce the judgment may be appropriate.
  • Judges will sometimes check the box for SORA registration on the judgment even though they did not mention it at sentencing. This is not permissible. Under MCR 6.425(D)(1)(d), “[a]t sentencing, the court must, on the record . . . state the sentence being imposed, including the minimum and maximum sentence if applicable, together with any credit for time served to which the defendant is entitled.” Moreover, “the sentence or judgment when pronounced must embrace the whole measure of the punishment imposed.”18 Piecemeal imposition of punishment is not authorized. And “the authority of the court over a defendant typically ends when a valid sentence is pronounced.”19 In this circumstance, a motion to correct a clerical mistake should be filed under MCR 6.435(A). Keep in mind, however, that if registration is appropriate and there is still time for the court to correct an invalid sentence under MCR 6.429, your motion may become moot.
  • The client must be advised of SORA on the record by the plea-taking judge to be an understanding plea under MCR 6.302(B)(2). If not, the client must be permitted to withdraw their plea under MCR 6.310(C)(2).20
  • Trial counsel must advise a client about the implications of SORA during plea discussions.21 If a client would have accepted a plea that would have avoided SORA or reduced the SORA tier and counsel failed to discuss the issue with the client, this could support a claim to restore the plea offer.22 

For one final suggestion, when all else fails, your client may get relief through the ACLU’s federal litigation that is currently on appeal in the Sixth Circuit, with a decision anticipated this summer.23

Endnotes
1 People v Kardasz, ___ Mich ___ (2025) (Docket No. 165008).
2 MCL 28.721 et seq., as amended by 2020 PA 295, effective March 24, 2021.
3 People v Lymon, 515 Mich 145, 152 (2024) (“We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution.”).
4 Kardasz, slip op at 34.
5 Id. at 35, citing People v Parks, 510 Mich 225, 259-260 (2022), and People v Taylor, ___ Mich ___ (2025) (Docket No. 166428).
6 Kardasz, slip op at 39.
7 Id. 
8 People v Betts, 507 Mich 527, 574 (2021).
9 Id. at 568 n 25.
10 People v Klinesmith, ___ Mich ___ (2025) (Docket No. 164649).
11 People v Ellis, Michigan Supreme Court Docket No. 166766. Ellis will be argued on March 11, 2026.
12 Alleyne v United States, 570 US 99, 103 (2013). See also Apprendi v New Jersey, 530 US 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”).
13 People v Golba, 273 Mich App 603, 616 (2007).
14 People v Althoff, 280 Mich App 524, 534-535 (2008).
15 MCL 28.722(t)(v), (t)(vi), and (v)(iv).
16 People v Lee, 489 Mich 289, 297-298 (2011).
17 Klinesmith, ___ Mich at ___ (Docket No. 164649) (“As punishment, any requirement to register under the SORA is part of the sentence and must appear on the judgment of sentence.”).
18 People v Nunez, 342 Mich App 322, 334 (2022) (quotation marks and citation omitted).
19 People v Miles, 454 Mich 90, 96 (1997).
20 People v Brown, 492 Mich 684, 698 (2012). But see id. at 695 n 36 (noting that this rule has been limited when there is a sentencing agreement).
21 People v Fonville, 291 Mich App 363, 392 (2011).
22 Lafler v Cooper, 566 US 156, 164 (2012). 
23 For a thorough discussion of the federal litigation, see the November 2024 issue of the Criminal Defense Newsletter.

Drew O. Walbeck
Wolf Law PLLC

Drew Walbeck is a MAACS roster attorney with a practice exclusively in criminal appeals, postconviction motions for relief from judgment, and the occasional federal habeas petition. Drew has lectured on challenging the presentence report and participated in panel discussions of motions for relief from judgment. Drew leverages his prior experience as a research attorney with the Michigan Court of Appeals to craft briefs that make it more difficult for the judges and their staff to decide against him. Drew is always happy to discuss all things criminal law, but he especially enjoys strategizing the downfall of SORA.