Every so often, a court order lands that doesn’t just change the law on paper — it changes people’s lives the same week. That’s what happened in Michigan.
In a decision handed down in People of Michigan v. Eddie Lee Smith, the Michigan Supreme Court reversed the court of appeals, vacated a Kent Circuit Court order, and made clear that the state’s 2021 Sex Offenders Registration Act (SORA) cannot be applied retroactively to people whose conduct predates the 2011 amendments. Within roughly 48 hours, the Michigan State Police issued a compliance notice and began pulling pre-2011 registrants off the public site. One of the podcast’s guests — a longtime legislative advocate who has worked on some 32 criminal justice bills at the state and federal level — found out about the ruling on a Wednesday and was off the registry by Thursday.
If you’ve followed registry litigation for any length of time, you know how rarely that sequence happens. Usually a win means years of remand, foot-dragging, and “implementation.” This one moved fast. But as the hosts and their guest work through the decision, a more complicated picture emerges: this is a major constitutional victory, and it is also the opening of a legislative fight that hasn’t started yet.
Strip away the legalese and the holding is straightforward.
Eddie Lee Smith’s offense conduct occurred in 1995 and 2010. He was nonetheless being required to register under the version of SORA amended in 2020 and effective March 24, 2021 — what everyone now calls the 2021 SORA. The court concluded that the statutory requirements enacted after he committed those offenses amount to punishment, citing its earlier reasoning. If the requirements are punishment, applying them to earlier conduct is an ex post facto violation under the U.S. Constitution.
That conclusion tracks what the court said in People v. Betts about the 2011 SORA. And it produced the same remedy: the 2021 SORA may not be retroactively applied to registrants whose registration-triggering acts occurred before the 2011 amendments, and severance or revival of prior versions is not appropriate.
The practical translation: if your conduct predates the magic date, neither the 2011 nor the 2021 statute reaches you.
Why Severance Failed
One subtlety generated genuine disagreement between the hosts, and it’s worth slowing down on.
When a court finds part of a statute unconstitutional, the usual fix is severance — cut out the bad provisions and let the rest stand. Michigan’s court declined to do that. The reason, as Larry explains it, is structural: once you remove all the punitive add-ons that made the scheme unconstitutional, there’s nothing left holding the thing up. You can’t sever your way into a functioning registry when the punitive machinery is the registry.
Josh reads the ruling as closing three doors at once:
- No new punitive requirements — anything the legislature tacks on that fits the ex post facto definition of punishment is dead on arrival.
- No severing the existing statute into something constitutional.
- No reverting to the pre-2011 version of the law.
As someone who has written legislation, Josh notes that this dramatically narrows the menu. Larry reads the severance language more narrowly — he thinks it modifies prior versions specifically. But both agree on the bottom line, and both agree on something that a lot of celebrating registrants may not want to hear.
The Warning Nobody Wants to Hear
“There’s no court in the land that can forbid a legislature from legislating.”
That’s the line that should stop anyone from assuming this is over. Michigan’s legislature can write a brand-new registration statute tomorrow. If that statute were genuinely remedial — non-punitive, non-public, minimal burden — it would very likely pass constitutional muster. And it could reach back and apply to anyone with a qualifying conviction, at any point in their life.
What would that look like? Larry sketches it, and it’s closer to how registries actually worked when most states created them thirty-odd years ago:
- You report that you have a conviction.
- The state keeps it in a database — not a public website broadcast to the world.
- You update changes electronically, the way young men register for the Selective Service.
- No in-person reporting. No fingerprinting. No booking-style processing.
- Missing a deadline carries a trivial civil consequence, not a felony and a year in prison.
Andy’s instinct — “so they could say update your info online and the penalty is a five dollar fine?” — is exactly right. That’s the difference between regulation and punishment, and it’s the entire constitutional ballgame.
Here’s the uncomfortable part: a scheme like that would be constitutional, and it would put thousands of people back on a list. The victim advocacy apparatus will not quietly accept thousands of people vanishing. Pressure is coming.
The Advocacy Play: Write the Bill Yourself
This is where the conversation gets genuinely strategic, and where it will make some listeners uncomfortable.
Larry’s advice to Michigan’s two advocacy organizations is blunt: learn to say the words civil regulatory scheme without flinching, get a meeting with the highest-level legislative leadership you can reach, and make an offer. The offer has two halves.
The first half is a promise to litigate. We will sue you until you stop passing unconstitutional laws, and we will keep winning, and it will keep costing you.
The second half is a hand extended. If you’re determined to have a registry, we will help you draft one we won’t challenge.
He knows exactly how that lands in the community. You’ll be called a sellout. The response he offers is disarmingly practical: would you rather I draft the law, or would you rather they draft it? Look at what they produced in 2021 without meaningful input, and then answer.
Josh — who testified against the 2021 law — agrees, and offers evidence. Even in opposition, he got provisions changed. The original draft would have forced people to update information within a window that didn’t account for business days; that language got fixed because of conversations he had. Being in the room changes the text.
Why “Civil Regulatory Scheme” Is a Power Phrase
Andy asks the question a lot of listeners are thinking: why does that specific phrase matter so much?
Because almost no one in a state capitol knows it. Larry estimates that fewer than 5% of lawmakers understand that registration survives constitutional review only because it’s classified as civil regulation rather than punishment. They’ve never been told there are boundaries. What they hear, constantly, is pressure from law enforcement and victim advocacy groups to make it tougher.
So when an advocate walks in and explains the doctrine calmly — here’s why this is upheld, here’s the line you can’t cross, here’s how to give your constituents what they want without another five years of litigation — that’s new information. It also signals balance. You’re not the person who says no to everything. You’re the person who understands they have a political need to satisfy and wants to help them meet it lawfully.
That reframing is worth more than a dozen angry testimonies.
The Political Calendar
Timing may be the best thing registrants have going right now.
Josh’s read: until November, the leadership of the Senate judiciary committee won’t let a new scheme move. They’re term-limited out, they’re not worried about being punished for inaction, and he knows them well enough to be confident. Everyone else is in campaign mode and has no appetite for a controversial bill. The window is quiet — unless public outcry forces a response.
He’s mildly surprised the backlash hasn’t already arrived. He expects something scathing from major state media, likely blaming the Supreme Court. But that framing has a problem: the decision was unanimous. Liberals, conservatives, and moderates on the court all agreed. That makes it much harder to turn into a partisan football. The more accurate story is that the legislature has been told repeatedly that these schemes are unconstitutional and has kept trying to work around the ruling instead of solving the problem. Michigan’s constitution also affords broader protections than the federal baseline — which is precisely why the state keeps losing.
After November, everything depends on who holds the majority and who chairs which committee. Larry, a former Michigan resident, is bracing for the worst.
One encouraging signal: if the legislature passes something that closely resembles the old scheme, both men expect the court to move quickly. This is the second time it has rejected a retroactive registration regime — the Betts ruling was followed almost immediately by a new law that repeated the same defects. Courts remember being circumvented. Nobody expects them to spend another five years on a third round.
The Term Limits Problem
The conversation closes on a theme that reaches well past registry law.
When term-limited legislators walk out of Lansing for the last time, their institutional knowledge walks out with them. Some of it survives in year-round staff — Michigan has a full-time legislature, which helps — but most of it simply evaporates. New members arrive convinced that if they tilt their head the right way, the same approach will finally produce a different result. Larry’s analogy is budget policy: cut taxes, raise spending, balance the budget. We’ve been trying that for a century.
Applied here, the pattern is obvious. Each new cohort rediscovers the punitive registry, passes it, and loses in court. Josh, who has spent years working with legislators, isn’t a fan of term limits for exactly this reason: the members who best understand a complex issue are the ones who get forced out.
Three Takeaways
1. Winning in court is the beginning, not the end. Michigan registrants got real, immediate relief. But the ruling constrains the form a registry can take, not whether one can exist. The legislature’s pen still works.
2. Unanimity is a shield. A 7-0 decision is much harder to attack as judicial activism than a narrow ideological split. When a ruling holds across the political spectrum, the pressure necessarily shifts back toward the lawmakers who wrote the flawed statute.
3. Be in the room. Litigation alone leaves drafting to people who don’t understand the constitutional limits. Showing up with a workable, constitutional alternative — and the credibility of a lawsuit behind you — is how you shape the text instead of just fighting it.
For now, thousands of Michiganders woke up off a list they’d been on for decades. That deserves the celebration it’s getting. What it also deserves is someone watching Lansing very closely come November.