The Lawletter Vol. 51 No. 5
Suzanne Bailey, Senior Attorney
American society holds those who prey upon children sexually in particular disrepute. Nowhere is this better illustrated than in the enhanced criminal penalties imposed upon those convicted of child sexual abuse, including required registration on state sex offender lists and more restrictive terms of probation. As recent decisions from two state supreme courts demonstrate, this heightened oversight of child sex offenders by state legislatures can often result in sentencing errors.
In People v. Smith, SC: 168200 & (69), 2026 Mich. LEXIS 1700, 2026 LX 487945, 2026 WL 2658449 (Sept. 9, 2026), the Supreme Court of Michigan considered the propriety of requiring the defendant, who was convicted of first degree criminal sexual conduct ("CSC-I"), i.e., rape, of his 15-year-old stepdaughter in 1995 and second degree criminal sexual conduct ("CSC-II"), i.e., sexual contact, with his 13-year-old biological daughter in 2010, to register under the Sex Offenders Registration Act ("SORA"), as amended and made effective in 2021 ("the 2021 SORA"). He pleaded no contest to both charges in 2010 and was sentenced to between 15 and 30 years in prison for the CSC-I conviction and to between three and 15 years in prison for the CSC-II conviction. For a statement of facts, see the underlying Michigan Court of Appeals decision, People v. Smith, No. 366923, 2025 Mich. App. LEXIS 504, 2025 LX 241244, 2025 WL 272497 (Jan. 22, 2025).
The Michigan Court of Appeals denied petitions for leave to appeal in 2012 and 2014 and, in 2025, affirmed the trial court's 2023 order denying a motion for relief from judgment, finding that the Ex Post Facto Clauses of the U.S. and Michigan Constitutions did not apply to the registration requirement. In a short order relying on Michigan precedent holding that the 2021 SORA constitutes punishment of sex offenders, see People v. Kardasz, No. 165008, 2025 Mich. LEXIS 2371, 2025 LX 517429 (Dec. 19, 2025), the state supreme court reversed the court of appeals, concluding that requiring the defendant to register under the 2021 SORA for acts committed in 1995 and 2010 was prohibited by the Ex Post Facto Clauses. Moreover, as decided in People v. Betts, 507 Mich. 527, 968 N.W.2d 497 (2021), the 2021 SORA could not be retroactively applied, and it was inappropriate to sever or revive prior versions of the SORA. Put simply, the constitution precluded the state from assessing a punishment that did not exist at the time of the two offenses.
While the defendant ultimately prevailed on his request for relief from judgment in People v. Smith, the decision by the Supreme Court of Virginia in Commonwealth v. Kuykendall, 934 S.E.2d 199 (Va. 2026), shows that application of constitutional principles to child sex offender sentencing does not always result in a "win" for the defendant. In Kuykendall, the Virginia court addressed whether an offender on probation as part of a suspended sentence is entitled to the same First Amendment right to free speech as a defendant who has fully completed his custodial sentence. The defendant was found guilty of aggravated sexual battery of a 10-year-old victim and sentenced to 20 years of incarceration with five years and one month suspended. Suspension of the sentence and supervised probation was conditioned on good behavior and compliance with the rules and requirements set by the probation officer. The rules for sex offenders included conditions not applicable to others with a suspended sentence. Of relevance to this case, one of the additional conditions was that the defendant not use the internet without the permission of the probation officer or other monitoring. This rule applied, even though the sex offense did not involve the internet.
After a series of probation violations, including using the internet without permission, the court revoked the defendant's suspended sentence. The Virginia Court of Appeals reversed the trial court's revocation, finding that under the U.S. Supreme Court decision in Packingham v. North Carolina, 582 U.S. 98 (2017), the sentencing court could not interfere with the defendant's First Amendment rights without showing that the restriction on internet access served a rehabilitative or public safety purpose. The Virginia Supreme Court reversed, finding that Packingham did not apply because the two offenders had different statuses. The defendant in Packingham had served his custodial service in full and was not on probation or post-release supervision. He was later convicted of the wholly separate crime of accessing a social networking website while being a registered sex offender. In other words, the prohibition against the use of social networks was applied to a free man who had fully and unconditionally served his sentence. In contrast, the defendant in Kuykendall had only partially served his custodial sentence and was on supervised release only by the grace of the Commonwealth. As such, he was entitled to no greater First Amendment rights than a person who was incarcerated.
