ex post facto violation in Michigan

2025Although Kiczenski involved an ex post facto challenge rather than a cruel-or-unusual-punishment challenge, the Court emphasized that both inquiries require the same framework set forth in Kennedy v Mendoza- Martinez, 372 US 144 ; 83 S Ct 554 ; 9 L Ed 2d 644 (1963).

2025Although Kiczenski involved an ex post facto challenge rather than a cruel-or-unusual-punishment challenge, the Court emphasized that both inquiries require the same framework set forth in Kennedy v Mendoza- Martinez, 372 US 144 ; 83 S Ct 554 ; 9 L Ed 2d 644 (1963).

2016Specifically, 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 NW2d 686 (1996).] “The critical question [for an ex post facto violation] is whether the l

2016Specifically, 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 NW2d 686 (1996).] “The critical question [for an ex post facto violation] is whether the l

2026People v Kelly, 231 Mich App 627, 640-641 ; 588 NW2d 480 (1998). -7- Second, although defendant’s supplemental brief on appeal identifies the expanded disclosure of “internet identifiers,” MCL 28.722(g) and MCL 28.725(2)(a), as constituting ex post facto punishment,3 he has not explained how that disclosure requirement differs—or increasingly differs—from the 2011 disclosure requirements.

2026People v Kelly, 231 Mich App 627, 640-641 ; 588 NW2d 480 (1998). -7- Second, although defendant’s supplemental brief on appeal identifies the expanded disclosure of “internet identifiers,” MCL 28.722(g) and MCL 28.725(2)(a), as constituting ex post facto punishment,3 he has not explained how that disclosure requirement differs—or increasingly differs—from the 2011 disclosure requirements.

2021People v Hall, 499 Mich 446, 452 ; 884 NW2d 561 (2016). 9 Sixth Circuit in Does I determined that the retroactive application of the 2011 SORA violates federal constitutional ex post facto protections, this Court is not bound by that determination, see Johnson v VanderKooi, 502 Mich 751 , 764 n 6; 918 NW2d 785 (2018), and the Sixth Circuit’s opinion did not assess an ex post facto challenge under our state constitutional law.

2021People v Hall, 499 Mich 446, 452 ; 884 NW2d 561 (2016). 9 Sixth Circuit in Does I determined that the retroactive application of the 2011 SORA violates federal constitutional ex post facto protections, this Court is not bound by that determination, see Johnson v VanderKooi, 502 Mich 751 , 764 n 6; 918 NW2d 785 (2018), and the Sixth Circuit’s opinion did not assess an ex post facto challenge under our state constitutional law.

2021People v Hall, 499 Mich 446, 452 ; 884 NW2d 561 (2016). 9 Sixth Circuit in Does I determined that the retroactive application of the 2011 SORA violates federal constitutional ex post facto protections, this Court is not bound by that determination, see Johnson v VanderKooi, 502 Mich 751 , 764 n 6; 918 NW2d 785 (2018), and the Sixth Circuit’s opinion did not assess an ex post facto challenge under our state constitutional law.

2021People v Hall, 499 Mich 446, 452 ; 884 NW2d 561 (2016). 9 Sixth Circuit in Does I determined that the retroactive application of the 2011 SORA violates federal constitutional ex post facto protections, this Court is not bound by that determination, see Johnson v VanderKooi, 502 Mich 751 , 764 n 6; 918 NW2d 785 (2018), and the Sixth Circuit’s opinion did not assess an ex post facto challenge under our state constitutional law.

2018“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). -3- The seminal case interpreting the federal Ex Post Facto Clause, Calder v Bull, 3 Dall 386; 3 US 386 , 390; 1 L Ed 648 (1798), sets out the four basic categories of ex post facto violations: 1st.

2018“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). -3- The seminal case interpreting the federal Ex Post Facto Clause, Calder v Bull, 3 Dall 386; 3 US 386 , 390; 1 L Ed 648 (1798), sets out the four basic categories of ex post facto violations: 1st.

2018For example, plaintiff’s briefs on appeal (in part challenging this Court’s subject matter jurisdiction) were filed before the December 20, 2017 decision of the United States Court of Appeals for the Sixth Circuit, see Hill v Snyder, 878 F3d 193 (CA 6, 2017), that reversed the District Court’s earlier dismissal of the ex post facto challenge in that case, see Hill v Snyder, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 7, 2017 (Case No. 10-14568).

2018For example, plaintiff's briefs on appeal (in part challenging this Court's subject matter jurisdiction) were filed before the December 20, 2017 decision of the United States Court of Appeals for the Sixth Circuit, see Hill v. Snyder , 878 F.3d 193 (C.A. 6, 2017), that reversed the district court's earlier dismissal of the ex post facto challenge in that case, see Hill v. Snyder , unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 7, 2017 (Case No. 10-14568).

2018This 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).] The purpose underlying ex post facto prohibitions is "to assure that legislati

2000The Morales Court noted that “the focus of the ex post facto inquiry is not whether a legislative change produces some, ambiguous sort of ‘disadvantage,’ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Morales, supra at 506-507 & n 3.

2017People v Earl, 297 Mich App 104, 111 ; 822 NW2d 271 (2012).

2017People v Earl, 297 Mich App 104, 111 ; 822 NW2d 271 (2012).

2005Ludka v Dep’t of Treasury, 155 Mich App 250, 260 ; 399 NW2d 490 (1986).

2005Ludka v Dep’t of Treasury, 155 Mich App 250, 260 ; 399 NW2d 490 (1986).

2025Packingham v North Carolina, 582 US 98, 108 ; 137 S Ct 1730 ; 198 L Ed 2d 273 (2017).

2025Packingham v North Carolina, 582 US 98, 108 ; 137 S Ct 1730 ; 198 L Ed 2d 273 (2017).

2025The 2021 SORA was not in effect when defendant was convicted, sentenced, and resentenced, but the parties agree that he is currently subject to that act and he did not raise an ex post facto challenge. 2 Accordingly, we directed oral argument as to whether (1) requiring the defendant to register as a sex offender under [SORA], MCL 28.721 et seq., as amended by 2020 PA 295 , effective March 24, 2021 (the 2021 SORA), for the rest of his life constitutes cruel or unusual punishment under Const 1963, art 1, § 16, or cruel and unusual punishment under US Const, Am VIII; (2) lifetime electronic moni

2025As in the present case, the defendant in Gilliam contended that applying the new statute of limitations for CSC-I to him constituted an ex post facto violation, but the Court ruled as follows: In People v Russo, 439 Mich [584, 593; 487 NW2d 698 (1992)], our Supreme Court addressed a claim regarding the Legislature’s 1987 extension of the statute of limitations for sexual assaults in MCL 767.24 by 1987 PA 255 and ruled “that applying the extended statute of limitations to the then-not-yet-time-barred alleged sexual assaults is not ex post facto.” For that reason, it was not unconstitutional for

2025The Ex Post Facto Clause normally concerns the application of statutes, not judicial decisions; however, “ex post facto principles are applicable to the judiciary by analogy through the Due Process Clauses of the Fifth and Fourteenth Amendments.” People v Doyle, 451 Mich 93, 99-100 ; 545 NW2d 627 (1996). “[R]etroactive application of a judicial decision will only violate due process when it acts as an ex post facto law.” Id. at 100 .

2025The Ex Post Facto Clause normally concerns the application of statutes, not judicial decisions; however, “ex post facto principles are applicable to the judiciary by analogy through the Due Process Clauses of the Fifth and Fourteenth Amendments.” People v Doyle, 451 Mich 93, 99-100 ; 545 NW2d 627 (1996). “[R]etroactive application of a judicial decision will only violate due process when it acts as an ex post facto law.” Id. at 100 .

2025The 2021 SORA was not in effect when defendant was convicted, sentenced, and resentenced, but the parties agree that he is currently subject to that act and he did not raise an ex post facto challenge. 2 Accordingly, we directed oral argument as to whether (1) requiring the defendant to register as a sex offender under [SORA], MCL 28.721 et seq., as amended by 2020 PA 295 , effective March 24, 2021 (the 2021 SORA), for the rest of his life constitutes cruel or unusual punishment under Const 1963, art 1, § 16, or cruel and unusual punishment under US Const, Am VIII; (2) lifetime electronic moni

2025The 2021 SORA was not in effect when defendant was convicted, sentenced, and resentenced, but the parties agree that he is currently subject to that act and he did not raise an ex post facto challenge. 2 Accordingly, we directed oral argument as to whether (1) requiring the defendant to register as a sex offender under [SORA], MCL 28.721 et seq., as amended by 2020 PA 295 , effective March 24, 2021 (the 2021 SORA), for the rest of his life constitutes cruel or unusual punishment under Const 1963, art 1, § 16, or cruel and unusual punishment under US Const, Am VIII; (2) lifetime electronic moni

2024The Court explained that, while it “was considering the ex post facto challenge in Betts, the Legislature enacted 2020 PA 295 , effective March 24, 2021 (the 2021 SORA).” Lymon II, ___ Mich at ___; 2 See People v Cobbs, 443 Mich 276, 283 ; 505 NW2d 208 (1993). -2- slip op at 3.

2024The Court explained that, while it “was considering the ex post facto challenge in Betts, the Legislature enacted 2020 PA 295 , effective March 24, 2021 (the 2021 SORA).” Lymon II, ___ Mich at ___; 2 See People v Cobbs, 443 Mich 276, 283 ; 505 NW2d 208 (1993). -2- slip op at 3.

2018“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). -3- The seminal case interpreting the federal Ex Post Facto Clause, Calder v Bull, 3 Dall 386; 3 US 386 , 390; 1 L Ed 648 (1798), sets out the four basic categories of ex post facto violations: 1st.

2018When faced with an ex-post-facto claim that the new statute is “more burdensome” than the old one, a court “must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous.” Dobbert, 432 US at 294 .