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concluding that the recapture, student safety zones, and in-person reporting requirements of Michigan’s sex offender registration statute did not constitute punishment
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Docket No. 322151.
10-15-2015
PEOPLE v. TUCKER.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Tanya L. Nava, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Jessica L. Zimbelman) for defendant. Sofia V. Nelson, Kary L. Moss, Detroit and Miriam J. Aukerman, for the American Civil Liberties Union.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Tanya L. Nava, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jessica L. Zimbelman) for defendant. Sofia V. Nelson, Kary L. Moss, Detroit and Miriam J. Aukerman, for the American Civil Liberties Union.
Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.
Opinion
PER CURIAM. Defendant appeals by delayed leave granted his no-contest plea convictions of felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2). Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to 119 days, time served, for the felonious assault conviction, and 93 days, time served, for the domestic violence conviction. Defendant was also required to register as a sex offender under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq. We affirm.
See People v. Tucker, unpublished order of the Court of Appeals, entered July 3, 2014 (Docket No. 322151).
I. BACKGROUND
Defendant was convicted in 1990 of assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1). He was sentenced to three years' probation and was discharged in 1993. On October 1, 1995, SORA went into effect. See 1994 PA 295. Although assault with intent to commit criminal sexual conduct involving penetration is a listed offense requiring registration, MCL 28.722(w)(iv ), defendant was not required to register because he was discharged from probation before the registry went into effect, MCL 28.723(1). In 2011, the Legislature amended SORA, 2011 PA 17, to include the following “recapture” provision, codified at MCL 28.723(1)(e) :
(1) Subject to subsection (2), the following individuals who are domiciled or temporarily reside in this state or who work with or without compensation or are students in this state are required to be registered under this act:
* * *
(e) An individual who was previously convicted of a listed offense for which he or she was not required to register under this act, but who is convicted of any other felony on or after July 1, 2011.
On October 8, 2013, defendant pleaded no contest to felonious assault, MCL 750.82, and domestic violence, MCL 750.81(2), under a Cobbs agreement by which he would be sentenced to time served. At sentencing, the trial court told defendant that he would be required to register as a sex offender under MCL 28.723(1)(e) and gave defendant the opportunity to withdraw his plea. Defendant declined. Defendant was required to register for life as a Tier III offender.
People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993).
Defendant was required to register under MCL 28.723(1)(e) because of his felonious assault conviction, which is a felony. See MCL 750.82(1). His domestic violence conviction is a misdemeanor. MCL 750.81(2).
Defendant then filed a motion to correct an invalid sentence to have himself removed from the SORA registry, arguing that the registration requirement violated the state and federal Ex Post Facto Clauses, the federal Cruel and Unusual Punishment Clause, and the state Cruel or Unusual Punishment Clause. The trial court denied the motion and determined that defendant was required to register under the terms of SORA. II. EX POST FACTO CLAUSES
Defendant first contends that the requirement that he register as a sex offender under SORA violates the Ex Post Facto Clauses of the state and federal constitutions. We disagree.
We review de novo issues of constitutional law. People v. Temelkoski, 307 Mich.App. 241, 246, 859 N.W.2d 743 (2014), lv. gtd. 498 Mich. 942, 872 N.W.2d 219 (2015). The United States and Michigan Constitutions prohibit ex post facto laws. People v. Callon, 256 Mich.App. 312, 316–317, 662 N.W.2d 501 (2003), citing U.S. Const. art. I, § 10 ; Const. 1963, art. 1, § 10. This Court has declined to interpret the Ex Post Facto Clause of the Michigan Constitution as affording broader protection than its federal counterpart. Callon, 256 Mich.App. at 317, 662 N.W.2d 501. All laws that violate ex post facto protections exhibit the same two elements: “(1) they attach legal consequences to acts before their effective date, and (2) they work to the disadvantage of the defendant.” Id. at 318, 662 N.W.2d 501. “The critical question [for an ex post facto violation] is whether the law changes the legal consequences of acts completed before its effective date.” Id. (quotation marks and citations omitted; alteration in original). This Court has identified four circumstances that implicate the Ex Post Facto Clauses:
A statute that affects the prosecution or disposition of criminal cases involving crimes committed before the effective date of the statute violates the Ex Post Facto Clauses if it (1) makes punishable that which was not, (2) makes an act a more serious criminal offense, (3) increases the punishment, or (4) allows the prosecution to convict on less evidence. [Riley v. Parole Bd., 216 Mich.App. 242, 244, 548 N.W.2d 686 (1996).]
In this case, the third circumstance is at issue. Defendant argues that his registration as a sex offender has increased the punishment for his 1990 conviction. The prosecution counters that MCL 28.723(1)(e) cannot constitute an ex post facto law because it attaches legal consequences to defendant's 2013 felony conviction, not his 1990 conviction.
We find caselaw on recidivist statutes helpful in answering this question. As a general matter, “ ‘recidivist statutes ... do not change the penalty imposed for the earlier conviction.’ ” People v. Reichenbach, 459 Mich. 109, 124–125, 587 N.W.2d 1 (1998), quoting Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Callon is instructive. The defendant in Callon was convicted of impaired driving, MCL 257.625(3), in 1993. Callon, 256 Mich.App. at 315, 662 N.W.2d 501. On October 9, 1999, he was arrested for “operating a vehicle under the influence of intoxicating liquor or while having a blood alcohol content of 0.10 grams or more per 100 milliliters of blood (OUIL/UBAL), MCL 257.625(1).” Callon, 256 Mich.App. at 314, 662 N.W.2d 501. During the period between the two offenses, the Legislature amended MCL 257.625(23)(a) so that a previous impaired-driving conviction could be used to enhance a subsequent OUIL/UBAL conviction. Id. at 315–316, 662 N.W.2d 501. This Court rejected the defendant's ex post facto challenge to this enhancement, holding that the amendment to the statute had not altered the legal consequences of his 1993 conviction, but rather, it altered the legal consequences of his 1999 conviction. Id. at 318, 662 N.W.2d 501. This Court explained, “[T]he conduct for which defendant is being punished is driving while intoxicated or with an unlawful blood alcohol level after having fair notice that the statute had been amended to permit enhancement of an OUIL/UBAL conviction with a prior impaired-driving conviction.” Id. at 319, 662 N.W.2d 501. This Court concluded, “Simply put, there is no retroactive application of the law where a prior conviction is used to enhance the penalty for a new offense committed after the effective date of the statute.” Id. at 321, 662 N.W.2d 501.
In this case, although MCL 28.723(1)(e) is not a traditional recidivist statute, the reasoning of Callon applies nonetheless. Defendant's registration was not required until he committed another felony in 2013. His 1990 conviction was used to enhance the consequences of his 2013 felony, which was committed after the effective date of the statute. This would be a different case if on July 1, 2011, the effective date of MCL 28.723(1)(e), defendant had been immediately required to register as a sex offender because of his 1990 conviction alone. Rather, defendant is required to register in connection with the 2013 felony. Defendant's registration in this case is inextricably tied to his 1990 conviction, but this does not lead to the conclusion that new legal consequences have been added to that conviction. In Callon, the enhancement was similarly tied to the defendant's preceding impaired-driving conviction, but the consequences were added to his subsequent OUIL/UBAL offense. See Callon, 256 Mich.App. at 318, 662 N.W.2d 501. Therefore, the recapture provision found in MCL 28.723(1)(e) does not violate the Ex Post Facto Clauses of the state and federal constitutions.
Amicus curiae American Civil Liberties Union argues that defendant's registration as a sex offender violates the Ex Post Facto Clauses as applied to him. However, the United States Supreme Court has held that ex post facto challenges cannot be brought on an as-applied basis. Seling v. Young, 531 U.S. 250, 263, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). Therefore, we reject this argument.
III. CRUEL OR UNUSUAL PUNISHMENT
Defendant next argues that requiring him to register as a sex offender constitutes cruel or unusual punishment. We disagree. As stated, we review de novo issues of constitutional law. Temelkoski, 307 Mich.App. at 246, 859 N.W.2d 743. Defendant, as the party challenging his SORA registration, bears the burden of proving that it is unconstitutional. Id. at 247, 859 N.W.2d 743.
Article 1, § 16 of the Michigan Constitution prohibits the infliction of cruel or unusual punishment. The threshold question in this case is whether registration constitutes punishment at all. See Temelkoski, 307 Mich.App. at 250–251, 859 N.W.2d 743. We have repeatedly held that sex offender registration does not constitute punishment because the registry is designed to protect the public rather than punish the offender. Id. at 250–271, 859 N.W.2d 743 ; People v. Golba, 273 Mich.App. 603, 615–621, 729 N.W.2d 916 (2007) ; People v. Pennington, 240 Mich.App. 188, 191–197, 610 N.W.2d 608 (2000). But defendant posits an argument we have not yet addressed. He argues that sex offender registration constitutes punishment because of the 2011 amendments that added to the SORA registration requirements. He specifically draws our attention to student safety zones and in-person reporting requirements. We take this opportunity to address the constitutionality of these provisions.
The Eighth Amendment of the United States Constitution prohibits the infliction of cruel and unusual punishment. U.S. Const. Am. VIII. The equivalent state constitutional provision is interpreted more broadly than the federal provision, and therefore, if a particular punishment “passes muster under the state constitution, then it necessarily passes muster under the federal constitution.” People v. Nunez, 242 Mich.App. 610, 618 n. 2, 619 N.W.2d 550 (2000).
One exception was People v. Dipiazza, 286 Mich.App. 137, 778 N.W.2d 264 (2009). In that case, the defendant, aged 18, had a consensual sexual relationship with NT, “who was nearly 15 years old.” Id. at 140, 778 N.W.2d 264. NT's parents “knew of the relationship and condoned it.” Id. at 154, 778 N.W.2d 264. The defendant and NT subsequently married. Id. The defendant pleaded guilty to attempted third-degree criminal sexual conduct, MCL 750.92 ; MCL 750.520d(1)(a), and was placed on youthful trainee status under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq. , on August 29, 2004. Dipiazza, 286 Mich.App. at 140, 778 N.W.2d 264. Under SORA, as it existed at that time, the defendant was required to register as a sex offender. Id. However, amendments to SORA went into effect on October 1, 2004, and if the defendant had been placed on HYTA status on or after October 1, 2004, he would not have been required to register as a sex offender. Id. at 141, 778 N.W.2d 264. The defendant was successfully discharged from HYTA status, and he petitioned to be removed from the sex offender registry. Id. at 140, 778 N.W.2d 264. This Court held that the defendant's registration as a sex offender constituted cruel or unusual punishment as applied to him. Id. at 156, 778 N.W.2d 264. In 2011, SORA was amended to include “a consent exception ... that provides some youthful offenders relief in situations involving consensual sex acts.” Temelkoski, 307 Mich.App. at 261, 859 N.W.2d 743. The Temelkoski Court held that in light of these amendments, the analysis in Dipiazza was “outdated.” Id. at 258, 859 N.W.2d 743.
A. HISTORY OF SORA
SORA first went into effect on October 1, 1995. 1994 PA 295; People v. Dipiazza, 286 Mich.App. 137, 142, 778 N.W.2d 264 (2009). It has since been amended 20 times. See 2014 PA 328, 2013 PA 2, 2013 PA 149, 2011 PA 17, 2011 PA 18, 2006 PA 46; 2006 PA 402, 2005 PA 121, 2005 PA 123, 2005 PA 127, 2005 PA 132, 2005 PA 301; 2005 PA 322, 2004 PA 237, 2004 PA 238, 2004 PA 240, 2002 PA 542, 1999 PA 85; 1996 PA 494, 1995 PA 10. These amendments have generally made registration more intrusive and onerous for registrants. Defendant argues that these successive amendments have turned what was originally only a law enforcement tool into a punishment for offenders. The sex offender registry as it first existed in 1995 was not public and was accessible only by law enforcement. Dipiazza, 286 Mich.App. at 142, 778 N.W.2d 264. Offenders were required to register for 25 years for their first offense and for life for a second or subsequent offense committed after October 1, 1995. MCL 28.725(3) and (4), as enacted by 1994 PA 295. In 1996, limited public inspection was allowed. MCL 28.730(2), as added by 1996 PA 494. Police agencies were required to make registry information for the zip codes within their jurisdiction “available for public inspection during regular business hours.” Id.
Defendant refers in his brief to the “legislative history” of these changes as purportedly recounted in the legislative analyses. But our Supreme Court has stated that such staff-prepared analyses are of little value to interpreting statutes and “[i]n no way can ... be said to officially summarize the intentions of those who have been designated by the Constitution to be participants in th[e] legislative process....” In re Certified Question from the United States Court of Appeals for the Sixth Circuit, 468 Mich. 109, 115 n. 5, 659 N.W.2d 597 (2003).
We do not attempt to catalogue every amendment to SORA but only those that are most relevant to the resolution of the questions before us.
In 1999, the registry became available to the public through the Internet. MCL 28.728(2), as amended by 1999 PA 85; Dipiazza, 286 Mich.App. at 142–143, 778 N.W.2d 264. Public Act 85 of 1999 also added more listed offenses requiring registration. MCL 28.722(d), as amended by 1999 PA 85. Further, Public Act 85 prescribed that persons convicted of certain offenses would be required to register for life. MCL 28.725(7), as amended by 1999 PA 85. Finally, offenders were required to report in person to verify their domicile or residence. MCL 28.725a, as added by 1999 PA 85.
In 2002, SORA was amended to require sex offenders who were students or employees at institutions of higher education to register with the law enforcement agency having jurisdiction over the institution's campus. MCL 28.724a, as added by 2002 PA 542. A registrant's status as a student or employee at such an institution began being listed on the registry. MCL 28.728(3)(b), as added by 2002 PA 542. Public Act 542 of 2002 also included a statement of legislative purpose:
The legislature declares that the sex offenders registration act was enacted pursuant to the legislature's
exercise of the police power of the state with the intent to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders. The legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons who pose such a potential danger. [MCL 28.721a, as added by 2002 PA 542.]
In 2004, registrants were first required to pay a $35 registration fee. MCL 28.725a(6), as added by 2004 PA 237. Another 2004 amendment required that photographs of registrants be added to the registry. MCL 28.728(3)(c), as added by 2004 PA 238.
In 2005, SORA was amended to create “student safety zones.” A student safety zone was defined as “the area that lies 1,000 feet or less from school property.” MCL 28.733(f), as added by 2005 PA 121. Offenders were generally precluded from residing within student safety zones. MCL 28.735(1), as added by 2005 PA 121. This preclusion did not apply if the offender was residing within a student safety zone when the amendment became effective. MCL 28.735(3)(c), as added by 2005 PA 121. Otherwise, an offender was required to “change his or her residence to a location outside the student safety zone not more than 90 days after he or she [was] sentenced for the conviction that [gave] rise to the obligation to register.” MCL 28.735(4), as added by 2005 PA 121. Another amendment in 2005 precluded offenders from working or loitering within student safety zones. MCL 28.734, as added by 2005 PA 127. “ Loiter” was defined as “to remain for a period of time and under circumstances that a reasonable person would determine [was] for the primary purpose of observing or contacting minors.” MCL 28.733(b), as added by 2005 PA 121. This subsection likewise did not apply to a sex offender working within a student safety zone when the amendment became effective, MCL 28.734(3)(a), as added by 2005 PA 127, or to a sex offender “whose place of employment [was] within a student safety zone solely because a school [was] relocated or [was] initially established 1,000 feet or less from the individual's place of employment,” MCL 28.734(3)(b), as added by 2005 PA 127. In 2006, the public became eligible to receive a notification when a resident in a designated zip code was required to register as a sex offender or when a registered sex offender moved his or her residence to that zip code. MCL 28.730(3), as amended by 2006 PA 46.
This exception did not apply “to an individual who initiate[d] or maintain[ed] contact with a minor within that student safety zone.” MCL 28.735(3)(c), as added by 2005 PA 121.
Again, these exceptions did not apply “to an individual who initiate [d] or maintain[ed] contact with a minor within that student safety zone.” MCL 28.734(3)(a) and (b), as added by 2005 PA 127.
In 2011, SORA underwent what defendant characterizes as a “sweeping overhaul.” The recapture provision was added. MCL 28.723(1)(e), as added by 2011 PA 17. Further, sex offenders were classified into three tiers according to the offenses of which they were convicted. MCL 28.722(r) to (w), as added by 2011 PA 17. Tier I offenders were required to register for 15 years, Tier II offenders for 25 years, and Tier III offenders for life. MCL 28.725(10) to (12), as amended by 2011 PA 17. Offenders were also required to report in person when they changed residences, changed places of employment, discontinued employment, enrolled as a student with institutions of higher education, discontinued such enrollment, changed their names, temporarily resided at any place other than their residence for more than seven days, established an e-mail or instant message address or “any other designations used in internet communications or postings,” purchased or began regularly operating a vehicle, or discontinued such ownership or operation. MCL 28.725 (1), as amended by 2011 PA 17.
In 2013, SORA was amended to require a $50 registration fee upon initial registration and each year thereafter, capped at $550. MCL 28.725a(6), as amended by 2013 PA 149. Further, the number of times and the specific months during which an offender had to report became dependent on the tier the offender fell into and the offender's birth month. MCL 28.725a(3), as amended by 2013 PA 149. In the present case, defendant, as a Tier III offender, must report four times each year for the rest of his life, MCL 28.725a(3)(c), as well as when any of the events listed in MCL 28.725(1) occur.
B. THE MENDOZA–MARTINEZ FACTORS
Determining whether a statutory scheme imposes a punishment requires a two-step inquiry. Temelkoski, 307 Mich.App. at 258, 859 N.W.2d 743. First, the Court must determine “whether the Legislature intended the statute as a criminal punishment or a civil remedy.” Id. (quotation marks and citation omitted). If the intent was to punish, the inquiry is complete. Id. But “if the Legislature intended to enact a civil remedy, the court must also ascertain whether the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention to deem it civil.” Id. (quotation marks and citations omitted; alteration in original). To do so, the Court looks to the seven factors enunciated in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Temelkoski, 307 Mich.App. at 259, 859 N.W.2d 743. Those factors are as follows:
“[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected
is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.” [People v. Earl, 495 Mich. 33, 44, 845 N.W.2d 721 (2014), quoting Mendoza–Martinez, 372 U.S. at 168–169, 83 S.Ct. 554.]
These seven factors serve as “useful guideposts” and are “neither exhaustive nor dispositive.” Earl, 495 Mich. at 44, 845 N.W.2d 721. Further, a party asserting that a statutory scheme imposes punishment must provide “ ‘the clearest proof that the statutory scheme is so punitive either in purpose or effect [as] to negate the [State's] intention to deem it civil.’ ” Id., quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quotation marks and citations omitted; second alteration in original).
In this case, defendant does not dispute that the Legislature did not intend SORA to constitute punishment. Indeed, the Legislature explicitly stated that its purpose was to protect the public's safety. MCL 28.721a. Based largely on this statement of purpose, this Court has “conclude[d] that the Legislature intended SORA as a civil remedy to protect the health and welfare of the public.” Temelkoski, 307 Mich.App. at 262, 859 N.W.2d 743. Therefore, it is necessary to look to the Mendoza–Martinez factors to determine whether the student safety zones and in-person reporting requirements are so punitive in purpose or effect that they negate the Legislature's intent to deem them civil. See id. at 262, 859 N.W.2d 743. In this endeavor, we first find instructive the United States Supreme Court's application of the Mendoza–Martinez factors to the Alaska sex offender registration statute in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).
C. SMITH
“Smith ... is the preeminent case holding that a sex offender registration and notification law, as applied to an adult defendant, is not a form of punishment.” Temelkoski, 307 Mich.App. at 263, 859 N.W.2d 743. The United States Supreme Court applied the Mendoza–Martinez factors and determined that the Alaska sex offender registration statute, Alas. Stat. 12.63.010 et seq. , did not constitute punishment for ex post facto purposes. Smith, 538 U.S. at 97–106, 123 S.Ct. 1140.
1. AFFIRMATIVE DISABILITY OR RESTRAINT
The Smith Court first observed that sex offender registration did not resemble imprisonment, “the paradigmatic affirmative disability or restraint.” Smith, 538 U.S. at 100, 123 S.Ct. 1140. The Court noted that the Alaska statute did “not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Id. The Court also reasoned that although registration may negatively affect offenders—in finding housing and employment, for example—“these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record.” Id. at 101, 123 S.Ct. 1140. Finally, the Court noted that offenders were not required to register in person. Id. The Court also rejected the contention that registration is akin to probation or supervised release, although it acknowledged that the argument “ ha[d] some force.” Smith, 538 U.S. at 101, 123 S.Ct. 1140. The Court explained that “[p]robation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction.” Id. Sex offenders, on the other hand, were “free to move where they wish[ed] and to live and work as other citizens, with no supervision.” Id. And although registrants were required to “inform the authorities after they change[d] their facial features (such as growing a beard), borrow[ed] a car, or [sought] psychiatric treatment, they [were] not required to seek permission to do so.” Id. Further, although offenders faced criminal penalties for failing to comply with reporting requirements, those penalties arose from proceedings that were separate from their underlying offenses. Id. at 101–102, 123 S.Ct. 1140.
2. HISTORICAL PUNISHMENTS
The Court found any resemblance between sex offender registration and historical shaming punishments “misleading.” Smith, 538 U.S. at 97–98, 123 S.Ct. 1140. “Punishments such as whipping, pillory, and branding,” the Court explained, “inflicted physical pain and staged a direct confrontation between the offender and the public.” Id. at 98, 123 S.Ct. 1140. Conversely, the stigma attached to a registered sex offender “results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.” Id. The Court reasoned, “Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Id. The Court also stated that adverse effects felt by registrants, such as “ mild personal embarrassment” or “social ostracism” were not “an integral part of the objective of the regulatory scheme.” Id. at 99, 123 S.Ct. 1140.
The Court added that “[t]he fact that Alaska posts the information on the Internet d[id] not alter [its] conclusion.” Smith, 538 U.S. at 99, 123 S.Ct. 1140. “The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender,” the Court explained. Id. “Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” Id. “The process is more analogous,” the Court stated, “to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” Id. The Court observed that the registry was passive, as a member of the public must seek out the information on the website. Id. The Court further noted that Alaska's website did not allow the public to shame an offender by, for example, “posting comments underneath his record.” Id.
3. SCIENTER
The Smith Court found this factor to be “of little weight” without an extended explanation. Smith, 538 U.S. at 105, 123 S.Ct. 1140.
4. TRADITIONAL AIMS OF PUNISHMENT: DETERRENCE AND RETRIBUTION
In Smith, it was undisputed that the sex offender registry could potentially deter crime. Smith, 538 U.S. at 102, 123 S.Ct. 1140. But the Court noted that “[a]ny number of governmental programs might deter crime without imposing punishment.” Id. The Court reasoned, “ ‘To hold that the mere presence of a deterrent purpose renders such sanctions “ criminal” ... would severely undermine the Government's ability to engage in effective regulation.’ ” Id., quoting Hudson v. United States, 522 U.S. 93, 105, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).
The Court also disagreed with the proposition that registration was retributive because the length of time that an offender was required to register “appear[ed] to be measured by the extent of the wrongdoing, not by the extent of the risk posed.” Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quotation marks and citation omitted). Although the Court acknowledged that the statute “differentiate[d] between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense,” it found that such “broad categories” and the “corresponding length of the reporting requirement” were “reasonably related to the danger of recidivism,” which was “consistent with the regulatory objective.” Id.
5. CRIMINAL BEHAVIOR
As with the scienter factor, the Court found this factor to be “of little weight.” Smith, 538 U.S. at 105, 123 S.Ct. 1140. “The regulatory scheme applies only to past conduct, which was, and is, a crime,” the Court explained. Id. The Court stated that this was “a necessary beginning point, for recidivism is the statutory concern.” Id. The Court added that “[t]he obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation.” Id.
6. RATIONAL CONNECTION TO A NONPUNITIVE PURPOSE
The Court held that this was “a most significant factor in [its] determination that the statute's effects [were] not punitive.” Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quotation marks and citation omitted). According to the Court, the Alaska sex offender registration statute had “a legitimate nonpunitive purpose of public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y].” Id. at 102–103, 123 S.Ct. 1140 (quotation marks and citation omitted; alteration in original). According to the Court, the respondents acknowledged that this purpose was valid and rational. Id. at 103, 123 S.Ct. 1140. They argued, however, that the statute “lack[ed] the necessary regulatory connection because it [was] not narrowly drawn to accomplish the stated purpose.” Id. (quotation marks and citation omitted). The Court rejected that argument and stated, “A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Id.
7. EXCESSIVENESS
The Smith Court rejected the contention that the statute was excessive because it applied to all convicted sex offenders without individual determinations of dangerousness. Smith, 538 U.S. at 103, 123 S.Ct. 1140. “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism,” the Court reasoned. Id. The Court found this to be “consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class.” Id. The Court noted that “[t]he risk of recidivism posed by sex offenders is ‘frightening and high.’ ” Id., quoting McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). The Court stated, “The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Smith, 538 U.S. at 103–104, 123 S.Ct. 1140. The Court further explained that a legislature has the power to fashion “a rule of universal application.” Id. at 104, 123 S.Ct. 1140 (quotation marks and citation omitted). “The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.” Id. The Court stated that Alaska was permitted to “dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants' convictions without violating the prohibitions of the Ex Post Facto Clause.” Id.
The Court also rejected the argument that the duration of the reporting requirements was excessive. Smith, 538 U.S. at 104, 123 S.Ct. 1140. The Court relied on empirical research, which showed that most child molesters who reoffend do so not within the first several years after they were released but that offenders can reoffend as many as 20 years after release. Id.
The Court likewise rejected the contention that the registry was excessive because of its wide dissemination. Smith, 538 U.S. at 104, 123 S.Ct. 1140. The Court reiterated that the registry was passive because “[a]n individual must seek access to the information.” Id. at 105, 123 S.Ct. 1140. The Alaska website also warned “that the use of displayed information to commit a criminal act against another person is subject to criminal prosecution.” Id. (quotation marks and citation omitted). “Given the general mobility of our population,” the Court reasoned, “for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment.” Id. The Court stated that determining excessiveness “is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy,” but “whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Id. The Court concluded that the Alaska statute met that standard. Id.
D. APPLICATION OF THE MENDOZA–MARTINEZ FACTORS TO STUDENT SAFETY ZONES AND IN–PERSON REPORTING REQUIREMENTS
This Court in Temelkoski generally endorsed the analysis in Smith. Temelkoski, 307 Mich.App. at 262–270, 859 N.W.2d 743. As noted, however, SORA has changed substantially since it was first enacted in 1994. Further, given its recent amendments, it is also markedly different from the Alaska statute reviewed by the United States Supreme Court in Smith in 2003. Although defendant argues that SORA as a whole is unconstitutional, he primarily takes issue with the student safety zones and in-person reporting requirements. Temelkoski did not address these particular provisions, although it generally held that sex offender registration does not impose punishment. Id. at 270, 859 N.W.2d 743. Under these circumstances, we conclude that sex offender registration is not punishment, and using the Mendoza–Martinez factors, we focus on whether the student safety zones and in-person reporting requirements are punitive in purpose or effect. 1. AFFIRMATIVE DISABILITY OR RESTRAINT
The prosecution relies heavily on Does 1–4 v. Snyder, 932 F.Supp.2d 803, 811–814 (E.D.Mich., 2013), in which the court held that the recent amendments to SORA did not make the scheme punitive in effect. However, the court relied on cases from before the student safety zone and in-person reporting provisions were added to SORA. See id. Therefore, we find that decision unpersuasive.
a. STUDENT SAFETY ZONES
Some state courts have concluded that student safety zones impose an affirmative disability or restraint on sex offenders. The Supreme Court of Indiana, addressing a similar provision barring sex offenders from residing within 1,000 feet of school property, held that such a restriction “is neither minor nor indirect.” State v. Pollard, 908 N.E.2d 1145, 1147, 1150 (Ind., 2009). The Indiana law, however, did not include a grandfather provision, and thus barred registrants from living within 1,000 feet of a school even if the registrant lived there before the law was passed. Id. at 1150. The law also required a registrant to change residences if a school or youth program center opened within 1,000 feet of the registrant's residence. Id.
Cases from foreign jurisdictions are not binding on this Court, but they may be persuasive. People v. Campbell, 289 Mich.App. 533, 535, 798 N.W.2d 514 (2010). Similarly, lower federal court decisions are not binding on this Court, but they too may be persuasive. People v. Fomby, 300 Mich.App. 46, 50 n. 1, 831 N.W.2d 887 (2013).
The Supreme Court of Kentucky, addressing a provision disallowing sex offenders to live within 1,000 feet of a school, stated that it found it “difficult to imagine that being prohibited from residing within certain areas does not qualify as an affirmative disability or restraint.” Commonwealth v. Baker, 295 S.W.3d 437, 440, 445 (Ky., 2009). As with those subject to the Indiana law, a registrant in Kentucky “faces a constant threat of eviction” because he or she would be forced to move if a school opened within 1,000 feet of his or her home. Id.
But other courts have held to the contrary. The Supreme Court of Iowa, addressing a statute prohibiting sex offenders from living within 2,000 feet of a school, recognized that such a provision “clearly impose[s] a form of disability.” State v. Seering, 701 N.W.2d 655, 659, 668 (Iowa, 2005). But the court held that “the disabling nature of the statute is not absolute.” Id. at 668. The court added, “[W]e are mindful of the objectives of the residency restriction under the statute and understand that a statute that imposes some degree of disability does not necessarily mean the state is imposing punishment.” Id.
We agree with the reasoning of the Indiana and Kentucky courts. Prohibiting registrants from living and working in many areas is undoubtedly an affirmative restraint. Further, application of the grandfather clause in Michigan is limited to residences where the offenders were living on January 1, 2006. MCL 28.735(3)(c). If that clause does not apply and a person who lives in a student safety zone commits a sex offense and is required to register, he or she will be forced to leave his or her home. MCL 28.735(4). Therefore, rather than merely restraining sex offenders, the student safety zone restriction may expel offenders in certain circumstances. Also, an offender who is not protected by the grandfather clause faces the constant prospect that he or she will be forced to move if a new school opens near his or her home. Unlike in Smith, offenders in Michigan are not entirely free to change residences or jobs given the student safety zone provisions in SORA. Although we agree with the Seering court that such a restraint is not “absolute,” it is a restraint nonetheless. See Seering, 701 N.W.2d at 668.
b. IN–PERSON REPORTING REQUIREMENTS
Some state courts have also concluded that frequent in-person reporting requirements impose an affirmative disability or restraint. The Supreme Judicial Court of Maine held that a similar provision requiring quarterly, in-person reporting “place[d] substantial restrictions on the movements of lifetime registrants and may work an impractical impediment that amounts to an affirmative disability.” State v. Letalien, 2009 Me 130, ¶ 37, 985 A.2d 4 (2009) (quotation marks and citation omitted). Distinguishing the reporting requirement at issue in Smith, the court stated that the requirement of quarterly, in-person reporting for life “is undoubtedly a form of significant supervision by the state.” Id. “[I]t belies common sense,” the court concluded, “to suggest that a newly imposed lifetime obligation to report to a police station every ninety days to verify one's identification, residence, and school, and to submit to fingerprinting [ ] and provide a current photograph,[ ] is not a substantial disability or restraint on the free exercise of individual liberty.” Id. at ¶ 58. The Supreme Court of New Hampshire recently endorsed the Letalien Court's reasoning. Doe v. State, 167 N.H. 382, 405, 111 A.3d 1077 (2015).
SORA requires fingerprinting only once. See MCL 28.727(1)(q).
Under SORA, registrants must have a new photograph taken if “[t]he officer or authorized employee” determines that the registrant's preexisting photograph does not “match[ ] the appearance of the individual sufficiently to properly identify him or her from that photograph.” MCL 28.725a(5).
The Supreme Court of Oklahoma adopted the same reasoning regarding its similar in-person reporting requirements. Starkey v. Oklahoma Dep't of Corrtions, 2013 OK 43, ¶ 49, 305 P.3d 1004 (Okla, 2013). Like defendant in the case at hand, the defendant in Starkey would have been required, under threat of prosecution, “to make an ‘in person’ appearance every 90 days for life and every time he moves, changes employment, changes student status, or resides somewhere for 7 consecutive days or longer.” Id. See also MCL 28.725(1) ; MCL 28.725a(3)(c). The Supreme Court of Oklahoma deemed these requirements “significant and intrusive.” Starkey, 2013 Okla. 43 at ¶ 49.
But other courts have disagreed. In United States v. Parks, 698 F.3d 1, 6 (C.A.1, 2012), the United States Court of Appeals for the First Circuit held that although periodic in-person reporting is inconvenient, such “inconvenience is surely minor compared to the disadvantages of the underlying scheme in its consequences for renting housing, obtaining work and the like—consequences that were part of the package that Smith itself upheld.” In United States v. WBH, 664 F.3d 848, 857 (C.A.11, 2011), the United States Court of Appeals for the Eleventh Circuit likewise held that quarterly in-person reporting “may be more inconvenient, but requiring it is not punitive.”
We agree with the reasoning of the Maine and Oklahoma courts. The reporting requirements in Michigan are onerous. Reporting requirements vary by tier, and Tier III offenders, such as defendant, are required to report in person four times a year for life. MCL 28.725a(3). In addition, MCL 28.725(1) provides that all registrants must report in person after any of the following events occur:
(a) The individual changes or vacates his or her residence or domicile.
(b) The individual changes his or her place of employment, or employment is discontinued.
(c) The individual enrolls as a student with an institution of higher education, or enrollment is discontinued.
(d) The individual changes his or her name.
(e) The individual intends to temporarily reside at any place other than his or her residence for more than 7 days.
(f) The individual establishes any electronic mail or instant message address,
or any other designations used in internet communications or postings.
(g) The individual purchases or begins to regularly operate any vehicle, and when ownership or operation of the vehicle is discontinued.
(h) Any change required to be reported under section 4a.
In Smith, the United States Supreme Court noted that the reporting scheme in that case did not impose a disability or restraint because offenders were not required to report in person. Smith, 538 U.S. at 101, 123 S.Ct. 1140. In contrast, under SORA, offenders are required to report in person up to four times a year and after any of the events listed in MCL 28.725(1) occur. Many of the events listed in MCL 28.725(1) may occur frequently in the life of an average person. Thus, the in-person reporting requirements strike us as more than a mere inconvenience. Rather, we conclude that they amount to an affirmative disability or restraint.
2. HISTORICAL PUNISHMENTS
a. STUDENT SAFETY ZONES
Some courts have concluded that student safety zones are analogous to historical punishments. In Pollard, the Indiana Supreme Court stated that “restrictions on living in certain areas is not an uncommon condition of probation or parole.” Pollard, 908 N.E.2d at 1151. Courts have also compared the restrictions to banishment. “Banishment” is defined as “ ‘a punishment inflicted upon criminals, by compelling them to quit a city, place, or country, for a specific period of time, or for life.’ ” United States v. Ju Toy, 198 U.S. 253, 269–270, 25 S.Ct. 644, 49 L.Ed. 1040 (1905), quoting Black's Law Dictionary (citation omitted). In Baker, the Supreme Court of Kentucky found that the restrictions that prevented offenders from living in certain areas and that expelled offenders from their homes were “decidedly similar to banishment.” Baker, 295 S.W.3d at 444. In Starkey, the Oklahoma Supreme Court concurred with that reasoning. Starkey, 2013 Okla. 43 at ¶ 60.
But other courts have denied that the prohibition against residing in student safety zones is similar to banishment. The Supreme Court of Iowa stated that although a defendant “may have a sense of being banished to another area of the city, county, or state, true banishment goes beyond the mere restriction of ‘one's freedom to go or remain where others have the right to be: it often works a destruction on one's social, cultural, and political existence.’ ” Seering, 701 N.W.2d at 667, quoting Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 897 (C.A.2, 1996). The court added that “[o]ffenders are not banished from communities and are free to engage in most community activities.” Id. at 667.
We agree with the reasoning in Pollard and Baker that the restrictions created by the student safety zone provisions resemble banishment. Unlike the circumstances in Smith, SORA registrants are affirmatively barred from living in certain areas. Also, unless offenders are protected by the limited grandfather provision, they can be expelled from their residences as a consequence of registration. Although admittedly not true banishment, we find the similarity undeniable. Therefore, we believe that the restrictions imposed by the student safety zones have historically been regarded as a punishment.
b. IN–PERSON REPORTING REQUIREMENTS
Cases addressing in-person reporting requirements have focused on their similarity to supervised probation and parole. The Supreme Court of Indiana concluded that in-person reporting was “comparable to conditions of supervised probation or parole.” Wallace v. State, 905 N.E.2d 371, 380 (Ind., 2009). However, the Wyoming Supreme Court, relying on Smith, disagreed that in-person reporting requirements were similar to supervised probation or parole. Kammerer v. State, 2014 Wy. 50, ¶ 22, 322 P.3d 827 (2014). The court denied that in-person reporting was similar to “monitoring ... imposed under supervised probation or parole....” Id.
Many of the considerations noted by Smith still apply to Michigan's current Sex Offenders Registration Act. Sex offenders are not required to seek permission to do many things, such as change residences or cars, but are only required to report such changes. Also, penalties for failing to comply with SORA arise from proceedings separate from the offender's underlying offense. But the scheme examined in Smith did not entail in-person reporting. As stated, defendant, as a Tier III offender, must report in person four times each year for the rest of his life, MCL 28.725a(3)(c), as well as when any of the events listed in MCL 28.725(1) occur. This is far more intrusive than the reporting requirements in Smith and imposes a great amount of supervision by the state. We agree with the Wallace court that such demanding in-person reporting requirements are at least “comparable to conditions of supervised probation or parole.” See Wallace, 905 N.E.2d at 380.
3. SCIENTER
This Court has declined to consider this factor in assessing whether sex offender registration constitutes punishment. See Temelkoski, 307 Mich.App. at 262, 859 N.W.2d 743. Therefore, we too decline to address the factor.
We note that other courts have concluded that because most sex offenses require a finding of scienter, this factor counsels in favor of deeming registration punishment. See, e.g., Doe v. State, 189 P.3d 999, 1012–1013 (Alaska, 2008).
4. TRADITIONAL AIMS OF PUNISHMENT: DETERRENCE AND RETRIBUTION
a. STUDENT SAFETY ZONES
Some courts have concluded that student safety zones promote deterrence and retribution to such a degree that they are punitive. In Pollard, the Indiana Supreme Court stated that such restrictions are “apparently designed to reduce the likelihood of future crimes by depriving the offender of the opportunity to commit those crimes.” Pollard, 908 N.E.2d at 1152. The court determined that the provision was “an even more direct deterrent to sex offenders than the ... registration and notification regime.” Id. In Baker, the Supreme Court of Kentucky found that such restrictions are retributive given that there was “no individualized determination of the dangerousness of a particular registrant.” Baker, 295 S.W.3d at 444. The court noted that “[e]ven those registrants whose victims were adults are prohibited from living near an area where children gather.” Id. “When a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety,” the court concluded, “that restriction begins to look far more like retribution for past offenses than a regulation intended to prevent future ones.” Id. In Starkey, the Oklahoma Supreme Court essentially adopted the same reasoning. Starkey, 2013 Okla. 43 at ¶ 66. Courts concluding to the contrary have relied on the statement from Smith, 538 U.S. at 102, 123 S.Ct. 1140, that government programs can “deter crime without imposing punishment.” See, e.g., Seering, 701 N.W.2d at 668 ; Kammerer, 2014 Wy. 50 at ¶ 26.
The primary reason for the creation of the student safety zones is the desire to specifically deter registrants from committing future sexual offenses. As in Pollard, it appears that the provisions were “designed to reduce the likelihood of future crimes by depriving the offender of the opportunity to commit those crimes.” Pollard, 908 N.E.2d at 1152. Nonetheless, the disclaimer from Smith still applies: “Any number of governmental programs might deter crime without imposing punishment.” Smith, 538 U.S. at 102, 123 S.Ct. 1140. But the student safety zone provisions are unlike the statute at issue in Smith. In that case, the Alaska statute was a passive notification scheme designed to allow members of the public to protect themselves from sex offenders. In this case, the student safety zone provisions are not passive. Rather, registrants are specifically prohibited from living, working, and loitering in many areas. We agree with the observation of the Pollard court that student safety zones are “an even more direct deterrent to sex offenders than the ... registration and notification regime.” Pollard, 908 N.E.2d at 1152. In sum, we find that the foremost purpose of the student safety zones is deterrence.
However, we disagree that the student safety zones are necessarily retributive. Although the observations of the Baker Court have some merit, we are mindful that the Legislature is permitted to enact laws directed at sex offenders as a class without individual determinations of future dangerousness. See Smith, 538 U.S. at 103–104, 123 S.Ct. 1140. It is the province of the Legislature to determine that all sex offenders, regardless of their offenses, should be segregated from children. While one can reasonably question the usefulness of such a broadly sweeping measure, “[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.” Id. at 103, 123 S.Ct. 1140. Therefore, we cannot say that the student safety zones have the purpose or effect of promoting retribution.
b. IN–PERSON REPORTING REQUIREMENTS
Cases have not extensively addressed whether in-person reporting requirements promote deterrence and retribution. The requirements are designed to ensure that the information provided on the registry is accurate and up-to-date. Accurate and up-to-date information is essential to “monitor[ing] those persons” who the “legislature has determined ... pose[ ] a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state.” MCL 28.721a. Therefore, we cannot conclude that such measures necessarily promote deterrence or retribution. Still, we acknowledge that more rigorous reporting requirements could promote deterrence and retribution. If, for example, offenders were required to report in person twice daily, such onerous requirements could begin to appear less useful to promoting the regulatory goals of SORA and more like deterrence and retribution. However, the reporting requirements are not so extreme. Tier III offenders—those subjected to the most frequent reporting requirements—are only required to report four times each year, as well as when any of the events listed in MCL 28.725(1) occur. See MCL 28.725a(3)(c). Although certainly burdensome for the offenders, we cannot say that these requirements promote deterrence or retribution to such an extent that they are punitive. 5. CRIMINAL BEHAVIOR
Like the United States Supreme Court, this Court has declined to consider this factor in assessing whether sex offender registration constitutes punishment. See Smith, 538 U.S. at 105, 123 S.Ct. 1140 ; Temelkoski, 307 Mich.App. at 262, 859 N.W.2d 743. Therefore, we too decline to address this factor.
We note that the Alaska Supreme Court, in Doe, concluded that because registration laws only applied to convicted sex offenders and not “other individuals who may pose a threat to society even if they were not convicted,” the effect was punitive. Doe, 189 P.3d at 1014–1015. For example, registration laws do not apply to “defendants whose convictions are overturned for reasons other than insufficiency of evidence of guilt ... despite having engaged in the same conduct” as an offender who is forced to register. Id. at 1015.
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6. RATIONAL CONNECTION TO A NONPUNITIVE PURPOSE
As defendant admits, nearly every court has held that sex offender registration laws serve the nonpunitive purpose of promoting public safety. However, defendant questions whether the connection is rational. He calls attention to law review articles that advance the proposition that registration laws do not reduce recidivism and that sex offenders, as a class, are not prone to recidivism. While perhaps true that in certain circumstances the student safety zones and in-person reporting requirements do more harm than good, we cannot conclude that they are irrational measures for accomplishing the stated regulatory purpose of SORA. Moreover, we are not charged with determining the wisdom of these measures. Such questions are for the Legislature to decide. See People v. Wallace, 284 Mich.App. 467, 470, 772 N.W.2d 820 (2009) (noting that the wisdom of a policy is a political question). Similarly, the Legislature is charged with the authority to revisit, if it so chooses, the efficacy of the legislation. To the extent that defendant and amicus argue that the recapture provision is not rational as applied to defendant given that defendant's last sex offense conviction was 25 years ago, we must disagree. The argument has some merit, but we cannot conclude that requiring defendant to register as a sex offender is wholly irrational. Although defendant's sex offense conviction was 25 years ago, he committed another felony in 2013, and has “shown a general tendency to recidivate.” See People v. Fredericks, 2014 Ill. App (1st) 122122, ¶ 60, 383 Ill.Dec. 293, 14 N.E.3d 576 (2014).
7. EXCESSIVENESS
a. STUDENT SAFETY ZONES
Some courts have held that the broad application of student safety zones is excessive. The Supreme Court of Indiana stated, “Restricting the residence of offenders based on conduct that may have nothing to do with crimes against children, and without considering whether a particular offender is a danger to the general public, the statute exceeds its non-punitive purposes.” Pollard, 908 N.E.2d at 1153. The Supreme Court of Kentucky likewise concluded that given the magnitude of the restraint imposed by residency restrictions, the failure to make an individual determination of the danger a registrant may pose in the future rendered the restrictions excessive. Baker, 295 S.W.3d at 446. Other courts have concluded to the contrary. The Supreme Court of Iowa concluded that given “the special needs of children” and “the imprecise nature of protecting children from the risk that convicted sex offenders might reoffend,” residency restrictions are not excessive. Seering, 701 N.W.2d at 668.
We find that the Supreme Court's observations in Smith still apply. The Legislature is “not preclude[d] ... from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Smith, 538 U.S. at 103–104, 123 S.Ct. 1140. The Court explained that the legislature had the power to fashion “a rule of universal application.” Id. at 104, 123 S.Ct. 1140 (quotation marks and citation omitted). Further, “[t]he State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.” Id.
One can reasonably question the usefulness of prohibiting certain offenders from living and working within student safety zones even though their offenses were not committed against children. Despite these reservations, as we have already noted, the wisdom of a statute is a question for the Legislature. Wallace, 284 Mich.App. at 470, 772 N.W.2d 820. Moreover, the Legislature was not precluded from making categorical judgments of this nature. Smith, 538 U.S. at 103, 123 S.Ct. 1140. Therefore, the student safety zone restrictions are not excessive.
b. IN–PERSON REPORTING REQUIREMENTS
Courts have not extensively addressed whether in-person reporting requirements are excessive. The Supreme Court of New Hampshire found the lifetime duration of registration to be excessive. Doe, 167 N.H. at 410, 111 A.3d 1077. “If in fact there is no meaningful risk to the public, then the imposition of such requirements becomes wholly punitive.” Id. We disagree. Again, the Legislature is tasked with determining the risk posed by sex offenders. Moreover, although the in-person reporting requirements of SORA are onerous, it is difficult to conclude that they are necessarily excessive. Rather, as stated, they are reasonably designed to ensure that the information on the registry is accurate and up-to-date. Therefore, the in-person reporting requirements are not excessive.
E. CONCLUSION
1. STUDENT SAFETY ZONES
As is apparent from our foregoing discussion, the Mendoza–Martinez factors point us in both directions when it comes to student safety zones. We conclude that student safety zones impose affirmative restraints, resemble historical punishments, and promote deterrence. However, we also conclude that they are rationally connected to the nonpunitive purpose of public safety and that they are not excessive, because the Legislature is permitted to make the categorical judgment that sex offenders should not live, work, or loiter near schools. Weighing these factors, we are mindful that the burden lies with defendant to establish that student safety zones are punitive. As stated, a party asserting that a statutory scheme imposes punishment must provide “the clearest proof” that the scheme “ ‘is so punitive either in purpose or effect [as] to negate the ... intention to deem it civil.’ ” Earl, 495 Mich. at 44, 845 N.W.2d 721, quoting Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (quotation marks and citations omitted). In this case, because the Mendoza–Martinez factors cut both ways, we cannot conclude that defendant has met his burden. Further, even some of the factors that weigh in defendant's favor only do so to a limited extent. Student safety zones plainly restrict where offenders can live and work, but the restrictions are not absolute, and therefore, the restrictions are distinguishable from true banishment. And although student safety zones specifically deter registered offenders, the Smith Court held that a deterrent purpose alone will not render a civil regulatory scheme punitive. Smith, 538 U.S. at 102, 123 S.Ct. 1140. Moreover, the nonpunitive purpose of the student safety zones is “a most significant factor” in determining whether they are punitive in effect. See id. (quotation marks and citation omitted). Given these considerations, there is not the clearest proof that the student safety zone restrictions are so punitive in purpose or effect as to negate the Legislature's intent to deem them civil.
2. IN–PERSON REPORTING REQUIREMENTS
Regarding the in-person reporting requirements, the Mendoza–Martinez factors do not readily lead to one conclusion over the other. The requirements impose affirmative restraints and arguably resemble conditions of supervised probation or parole. However, the reporting requirements do not necessarily promote deterrence or retribution, they are rationally connected to the nonpunitive purpose of protecting the public by ensuring that the registry is accurate, and they are not excessive. As with the student safety zones, we cannot find the clearest proof that the in-person reporting requirements are punitive in effect given that the Mendoza–Martinez factors cut both ways. Further, we again find that even some of the factors that weigh in defendant's favor only do so to a limited extent. Although the reporting requirements are undeniably burdensome, their restraining effect is not absolute. Registrants are not precluded from many activities, such as changing residences or jobs, but are merely required to report them. And many of the considerations that Smith used to distinguish sex offender registration from supervised probation or parole still apply to the in-person reporting requirements. Given these considerations, we conclude that there is not the clearest proof that the in-person reporting requirements are so punitive in purpose or effect as to negate the Legislature's intent to deem them civil.
IV. CONCLUSION
We conclude that the recapture provision in MCL 28.723(1)(e) is constitutional. First, the recapture provision did not change the legal consequences of defendant's 1990 conviction. Rather, it attached legal consequences to his 2013 felony conviction. Therefore, that provision does not violate the Ex Post Facto Clauses of the state and federal constitutions. Second, the student safety zones and in-person reporting requirements of SORA do not constitute punishment. Therefore, they necessarily cannot constitute cruel or unusual punishment.
Affirmed.
HOEKSTRA, P.J., and JANSEN and METER, JJ., concurred.