Ex Post Facto: Part 1- The Legal Ruling

From New Media Detroit

In Part 1 we will examine the legal ruling that forced Michigan to remove more than 20,000 names from the registry. In Part 2 we will explore the implications of what lifting restrictions will mean for those affected. In Part 3 we will explain life after removal, including how to verify a loved one’s status and correct outdated third-party background-check data.

A Constitutional Course Correction

In September 2026, the Michigan Supreme Court issued a decision that forced the Michigan State Police to remove more than 20,000 people from Michigan’s public Sex Offender Registry. For many families, advocates, and people who had lived under registration rules for decades, the ruling represented more than a technical legal victory. It was a public admission that Michigan had gone too far during the era of “tough on crime” politics, and that constitutional limits still matter even when the people protected by those limits are unpopular.

The decision did not erase convictions. It did not declare anyone innocent. It did something narrower, but profoundly important: it said the state may not change the punishment for an offense years after the fact and then impose that new punishment backward. That principle, known as the ban on ex post facto punishment, is one of the oldest and most basic protections in American constitutional law.

What Happened in Michigan

On September 11, 2026, the Michigan State Police announced that, after a September 9 Michigan Supreme Court order, it had removed more than 20,000 people from the registry; the agency stated that about 43,000 people were actively registered or required to register when the order was issued.

The case centered on Eddie Lee Smith, whose relevant offenses occurred before July 1, 2011, but who was being required to comply with later versions of Michigan’s Sex Offenders Registration Act. The Court concluded that applying those later requirements to pre-2011 conduct amounted to unconstitutional punishment after the fact.

Why Ex Post Facto Matters

Ex post facto means “after the fact.” In constitutional terms, it prohibits the government from passing a law that retroactively increases the punishment for conduct that was already committed. The rule is not a loophole. It is a guardrail against government overreach. It prevents legislatures from moving the goalposts after a person has already been charged, convicted, sentenced, and punished.

That is why this ruling is such a significant victory. Michigan’s registry had grown from a law-enforcement tool into a sweeping system of public exposure, in-person reporting, tier labels, long registration periods, and sometimes lifetime consequences. When those burdens were imposed on people whose offenses occurred before the Legislature created them, the registry stopped looking like a neutral civil database and started looking like an added criminal sentence.

How the 2011 and 2021 Laws Got It Wrong

Concise Timeline of the Federal and Michigan Rulings

• August 25, 2016 — Federal appellate ruling, Does v. Snyder: The U.S. Court of Appeals for the Sixth Circuit held that major features of Michigan’s amended registry were punitive and could not be applied retroactively without violating the federal Ex Post Facto Clause.
• February 14, 2020 — Federal class-wide relief, Does II: The U.S. District Court for the Eastern District of Michigan applied the earlier constitutional rulings to the broader class of Michigan registrants, increasing pressure on the Legislature to revise SORA.
• March 24, 2021 — Revised SORA takes effect: Michigan enacted a new registry law intended to respond to the federal litigation, but it continued to impose many offense-based tiers, reporting duties, public-disclosure requirements, and lengthy registration periods on people with older offenses.
• July 27, 2021 — Michigan Supreme Court, People v. Betts: The Court held that applying the 2011 SORA retroactively to a person whose offense predated those amendments violated both the Michigan and federal constitutional bans on ex post facto punishment.
• September 27, 2024 — Federal district court, Does III v. Whitmer: Judge Mark A. Goldsmith found that important parts of the 2021 law still operated as punishment when applied to the pre-July 1, 2011 class, including retroactive lifetime registration and later-created in-person reporting duties.
• March 26 and April 22, 2025 — Federal judgment and amended judgment: The Eastern District of Michigan entered final relief in Does III, later making minor clerical corrections, which clarified the practical consequences of the September 2024 opinion for the defined subclasses.
• December 19, 2025 — Michigan Supreme Court, People v. Kardasz: The Court concluded that the 2021 SORA was punitive rather than merely a civil regulatory program, supplying a key premise for the later ex post facto analysis in Smith.
• May 29, 2026 — Michigan Supreme Court, People v. Shaver: The Court held that the substantive rule announced in Betts applies retroactively on collateral review, reinforcing that unconstitutional retroactive punishment could not remain in place merely because a conviction or registry violation was already final.
• September 9, 2026 — Michigan Supreme Court, People v. Eddie Lee Smith: The Court ruled that the 2021 SORA could not be applied to people whose registration-triggering conduct occurred before July 1, 2011, and rejected severance or revival of an older SORA version as a workaround.
• September 11, 2026 — State implementation: Michigan State Police announced that it had removed more than 20,000 names from the registry in compliance with the Smith order, while continuing its review of affected records.

The 2011 amendments were the turning point. They placed registrants into tiers, expanded public disclosure, increased reporting obligations, and lengthened registration periods for many people. The 2021 amendments attempted to preserve and extend the system after prior constitutional challenges. The problem was not merely that the laws were strict. The problem was that they were applied backward to people whose conduct occurred before those requirements existed.

In People v. Betts, the Michigan Supreme Court held that retroactive application of the 2011 SORA amendments violated state and federal constitutional prohibitions on ex post facto laws. Later reporting on People v. Eddie Lee Smith explained that the 2021 SORA could not be retroactively applied to people whose registration-triggering acts occurred before the 2011 amendments, and that reviving older versions of SORA was not an appropriate workaround.

The Federal Court Decision That Laid the Groundwork

Before the Michigan Supreme Court reached the Smith case, the U.S. District Court for the Eastern District of Michigan had already subjected the Legislature’s 2021 rewrite to a detailed constitutional test. In Does v. Whitmer, often called Does III, District Judge Mark A. Goldsmith issued an 115-page opinion on September 27, 2024. The case asked whether the 2021 law had actually repaired the constitutional problems identified in earlier litigation or had simply repackaged many of the same retroactive burdens.

The federal court concluded that the revised law still functioned as punishment in important respects. It held that Michigan could not retroactively extend registration terms from 25 years to life and could not impose the in-person reporting requirements created in 2011 on people whose registration-triggering conduct occurred before July 1, 2011. This analysis weakened the state’s claim that the 2021 statute was merely a prospective civil regulation. The practical burdens—frequent reporting, public identification, lengthy registration terms, and the consequences of noncompliance—remained central to deciding whether the law operated as additional punishment.

Does III also supplied a useful legal and administrative framework by defining a “pre-2011 ex post facto subclass”: people required to register because of conduct occurring before July 1, 2011. That same date became decisive in the later Michigan Supreme Court ruling. Treating affected registrants as a defined class made clear that the constitutional defect was not confined to one individual’s reporting dispute; it arose from applying an entire later statutory scheme to a readily identifiable group whose conduct predated that scheme.

The federal ruling further narrowed the available workarounds. If the 2021 framework could not constitutionally govern the pre-2011 class, the state could not cure the problem simply by selectively declining to enforce one provision while retaining the rest of a punitive retroactive structure. The later federal judgment addressed relief for the defined subclass, while the Michigan Supreme Court independently confronted whether an older version of SORA could be revived once the 2021 law was held inapplicable. Together, the cases moved the law toward the conclusion that Michigan could not keep shifting pre-2011 registrants among successive statutory versions to preserve substantially the same added punishment.

The connection should nevertheless be stated carefully. A federal district court does not control the Michigan Supreme Court’s interpretation of Michigan statutes or the Michigan Constitution, and the state court did not simply enforce the federal judgment. The two cases followed separate paths. But the September 2024 decision provided persuasive doctrinal groundwork: it tested the Legislature’s claimed 2021 fix, confirmed that the revised law could still be punitive in effect, focused attention on pre-July 1, 2011 conduct, and showed why retroactive extensions and reporting duties remained constitutionally vulnerable. The Michigan Supreme Court’s later ruling turned that developing framework into the state-law decision that prompted the large-scale removals.

The Bigger Political Lesson: Tough on Crime Went Too Far

Michigan’s registry became a symbol of an older political instinct: if a punishment was harsh, public, and permanent, it was assumed to be effective. But severity is not the same as safety. A registry that is too broad can dilute attention, overwhelm enforcement resources, and impose lifelong barriers to housing, employment, and family stability even after a person has completed a sentence. The Supreme Court’s ruling recognizes that public fear cannot justify ignoring constitutional boundaries.

This is why the ruling should be understood as a positive correction. It does not minimize harm to survivors. It does not excuse past conduct. It says that the state must govern through laws that are prospective, proportionate, and constitutional. The ability to punish has limits, and those limits protect everyone.

Support for the Ruling

Supporters of the decision emphasized that the ruling restores a basic constitutional boundary rather than offering special treatment. Miriam Aukerman, director of strategic litigation for the ACLU of Michigan, described the retroactive expansion as changing “the rules of the game.” Her explanation goes directly to the heart of ex post facto protection: a person is sentenced under the law in effect when the offense occurred, and the government may not return years later to add a more severe and lasting punishment.

The ACLU also placed the ruling within the longer history of Michigan’s registry litigation. Aukerman called the state’s registry bloated and ineffective and noted that many of the people affected by the ruling had lived in their communities successfully for decades. That perspective strengthens the case for a narrower system: public safety is not served simply by maintaining the longest possible list, especially when an overbroad registry can divert attention from people who present a current risk.

Aukerman made the public-safety argument in especially practical terms, saying that parents want “a system that works” and that Michigan’s system did not. The point is not that communities should have less meaningful information. It is that a useful system should be accurate, focused, evidence-based, and constitutional. A registry that treats very old cases and present risks as interchangeable may create a false sense of security while imposing barriers to stable housing, employment, and family reintegration.

Drew Walbeck, who represented Smith and other affected registrants, described the decision as allowing people who had served their prison and parole sentences to be released from a punishment that had continued to hang over them. His comment captures the human consequence of the ruling: constitutional limits matter not only in court opinions, but also in whether a person can obtain work, secure housing, support a family, and fully reenter society after completing the sentence imposed by a judge.

Limited Early Backlash and Rapid State Compliance

In the first round of public reporting, the removal of more than 20,000 names did not produce a clearly organized political campaign to resist the ruling. Coverage reviewed for this article did not identify a statewide elected official, major prosecutors’ association, victims’ organization, or other prominent public group announcing an immediate effort to reverse the decision. That absence should not be overstated: the ruling was still new, public reaction was developing, and future legislative proposals remained possible.

There was some public concern. One widely circulated news report quoted a parent who described the disappearance of a nearby registrant’s listing as “pretty scary.” A separate report noted that Calhoun County Prosecuting Attorney David Gilbert continued to view the registry as an important public-safety tool because it informs residents about people who may live nearby. These reactions reflect a genuine concern about community notice, but they do not by themselves establish a broad or coordinated backlash against the Court’s constitutional holding.

The speed of the Michigan State Police response was nevertheless notable. The Court issued its order on September 9, and by September 11 the agency reported removing more than 20,000 names. MSP Director Col. James F. Grady II stated that the department had not made the legal change, but maintained the database, was required to comply, and was taking the steps necessary to implement the ruling. He directed concerns or efforts to change the law to the Legislature.

That prompt implementation supports a careful conclusion: the executive agency did not attempt to delay or administratively obstruct the decision. It should not, however, be treated as proof that the administration affirmatively endorsed the ruling or its policy consequences. Compliance with a binding, unanimous decision of the state’s highest court was a legal duty. In the absence of a separate statement from the governor, attorney general, or another administration official, the most accurate description is that the state complied rapidly and publicly placed any policy response in the hands of lawmakers.

The distinction is important for understanding what may happen next. Because the Court rejected retroactive application of the 2021 law and also rejected simply reviving an earlier version as a workaround, an administrative agency cannot restore the removed names on its own. Any future response would have to respect the ex post facto limits identified by the Court. Lawmakers could debate prospective changes, improved risk assessment, or a narrower registry, but another attempt to impose expanded punishment on pre-2011 conduct would face the same constitutional problem.

Michigan Compared with Other States and Federal Systems

The table below shows why it is misleading to speak of a single American “sex offender registry system.” Registration is instead a layered network. State, territorial, and tribal governments determine who must register under their own laws, what information becomes public, how long registration lasts, and what procedures exist for review or removal. Federal law supplies minimum national standards and information-sharing mechanisms, but it does not make every jurisdiction’s rules identical.

That distinction matters in Michigan. The state’s 2011 tier structure closely reflected the federal preference for offense-based classification, which sorts people primarily by the statute of conviction rather than by an individualized assessment of current risk. Other states take different approaches: some use clinical or actuarial risk assessments, some combine risk review with offense categories, and others reserve broad public disclosure for particular classifications. These differences mean that two people with comparable histories can face very different registration lengths, reporting duties, and public visibility depending on where they live.

The Michigan ruling does not require every state to adopt Michigan’s result, because each state operates under its own statutes, constitution, and controlling court decisions. It does, however, place Michigan within a broader national debate over retroactivity. Some courts have continued to characterize registration as a civil regulatory measure, allowing legislatures greater freedom to apply new requirements to older convictions. Michigan’s courts concluded that the cumulative burdens of the modern law had become punitive enough that applying them to pre-2011 conduct crossed the constitutional line. The contrast is important: the label a legislature gives a law cannot by itself settle whether the law functions as punishment.

Federal SORNA adds another layer, but it should not be confused with a single national public registry controlled from Washington. SORNA establishes minimum standards for registration, verification, information sharing, and public notification across states, the District of Columbia, territories, and participating tribes. Jurisdictions may impose requirements that are more extensive than the federal baseline. The federal government also maintains law-enforcement information systems, while the public-facing National Sex Offender Public Website acts as a search portal into participating jurisdictions’ public data.

This structure explains why a change in Michigan should flow through to the national public search but may not immediately disappear from every private database. When Michigan removes a person from its public registry, the federal public portal should stop returning that Michigan record after the jurisdiction’s data updates. Yet a commercial screening company may still possess an older copy. Likewise, a person who lives, works, studies, or was convicted in another jurisdiction may need to investigate whether that jurisdiction claims an independent registration obligation. Removal from Michigan’s public list is therefore decisive as to Michigan’s current public listing, but it should not be mistaken for a universal order automatically rewriting every state, tribal, federal, or private record.

Seen in that national context, Michigan’s decision is both significant and measured. It leaves a registry in place for people who are lawfully subject to current requirements, preserves law-enforcement access where authorized, and does not disturb the underlying convictions. What it rejects is the assumption that a later Legislature may transform a completed sentence into a permanently expanding set of obligations. Michigan’s correction therefore does not abandon public safety; it insists that public safety policy remains constitutional, administrable, and tied to laws that existed when the relevant conduct occurred.

Conclusion:

Michigan’s Supreme Court did not create a loophole or grant a favor. It enforced a constitutional rule that protects everyone from retroactive punishment. The removal of more than 20,000 names should be understood as a long-overdue correction to a registry system that had expanded beyond its lawful limits. In Part 2 of this important topic we will look at what are the likely effects on those affected.

Part 1 References

1. Michigan State Police, “Official Statement – Michigan State Police Begins Removing Sex Offenders from Registry to Comply with Michigan Supreme Court Order,” September 11, 2026.
2. WWMT, “20,000 sex offenders removed from Michigan registry following Supreme Court ruling,” September 14, 2026.
3. ClickOnDetroit, “Michigan’s sex offender registry cut in half after Supreme Court ruling — Here’s why,” September 15, 2026.
4. FindLaw, People v. Betts, Supreme Court of Michigan, July 27, 2021.
5. MIRS.news, “Pre-2011 Sex Offenders May No Longer Appear On Registry,” September 2026.
6. WZZM 13, “More than 20K names removed from Michigan sex offender registry after court ruling,” September 16, 2026.
7. NewsNation, “20,000 removed from Michigan sex offender registry after ruling,” September 15, 2026.
8. NewsRadio KFBK, “Michigan Supreme Court Ruling Removes 20,000 From Sex Offender Registry,” September 15, 2026.
9. U.S. District Court for the Eastern District of Michigan, Does v. Whitmer (Does III), Opinion and Order Granting in Part Plaintiffs’ Motion for Summary Judgment and Granting in Part Defendants’ Motion for Summary Judgment, September 27, 2024.
10. ACLU of Michigan, “Federal Court Rules Once Again That Michigan’s Sex Offenders Registration Act Is Unconstitutional,” October 1, 2024.
11. FBI, “Sex Offender Registry Websites.”
12. U.S. Department of Justice SMART Office, “NSOPW vs. NSOR Fact Sheet.”