PEOPLE OF MI V ROBERT LEE DIPIAZZA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 3, 2009
9:05 a.m.
Plaintiff-Appellee,
v
No. 284946
Muskegon Circuit Court
LC No. 04-050171-FH
ROBERT LEE DIPIAZZA,
Defendant-Appellant.
Advance Sheets Version
Before: SERVITTO, P.J., and FITZGERALD and BANDSTRA, JJ.
FITZGERALD, J.
Defendant appeals by leave granted the April 1, 2008, order denying his request to have
his name removed from the sex offender registry, but granting his request to reduce his period of
registration under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., to 10 years.
We vacate the order and remand.
I. Facts and Procedural History
In 2004, when defendant was 18 years old, he had a consensual sexual relationship with
NT, who was nearly 15 years old.1 NT’s teacher discovered a photograph of defendant and NT
in bed together and defendant’s hand was on NT’s breast. The teacher informed the prosecuting
attorney.
Defendant was adjudicated under the Holmes Youthful Trainee Act (HYTA), MCL
762.11 et seq., for attempted third-degree criminal sexual conduct (CSC), MCL 750.92, MCL
750.520d(1)(a), on August 29, 2004, and was sentenced to probation. Defendant also was
required to register as a sex offender. Defendant successfully completed his probation on
November 18, 2005, and, under the terms of HYTA, his case was dismissed and he has no
conviction on his record. However, defendant continues to remain required to register as a sex
offender.
1
The consensual nature of the sexual relationship is not in dispute. Defendant and NT married
in April 2009 and their first child was due in June 2009.
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On January 25, 2008, defendant petitioned the trial court asking that his name be
removed from the sex offender registry because the requirement to register, as it applies to him,
violates the Cruel or Unusual Punishment Clause of the Michigan Constitution, Const 1963, art
1, § 16. In the alternative, defendant requested that the period that he is required to register as a
sex offender be reduced from 25 years to 10 years. Defendant argued that, because he was
adjudicated under HYTA and successfully completed his probation, he does not have a
conviction and so requiring him to register as a sex offender wrongfully identifies him as one
who has been convicted of a sex crime. He further argued that requiring him to register on the
public registry is cruel or unusual punishment because it harms his economic livelihood.
Defendant also mentioned that, because of amendments to SORA that became effective on
October 1, 2004, had he been convicted only six weeks later he would not have had to register on
the public registry.2
At the hearing on defendant’s petition, the trial court stated, “if I had some discretion
yours is one of those Romeo and Juliet cases where I would probably grant your relief.”
However, finding its decision dictated by the holding in In re Ayres, 239 Mich App 8; 608
NW2d 132 (1999), on April 1, 2008, the trial court denied defendant’s request to have his name
removed from the sex offender registry, but granted defendant’s request to reduce his period of
registration under SORA to 10 years.
II. Background
A. Holmes Youthful Trainee Act
HYTA is essentially a juvenile diversion program for criminal defendants under the age
of 21. Under the act,
if an individual pleads guilty to a criminal offense, committed on or after the
individual’s seventeenth birthday but before his or her twenty-first birthday, the
court of record having jurisdiction of the criminal offense may, without entering a
judgment of conviction and with the consent of that individual, consider and
assign that individual to the status of youthful trainee. [MCL 762.11(1).]
An assignment to youthful trainee status does not constitute a conviction of a crime unless the
court revokes the defendant’s status as a youthful trainee. MCL 762.12. If the defendant’s status
is not revoked and the defendant successfully completes his or her status as a youthful trainee,
the court “shall discharge the individual and dismiss the proceedings.” MCL 762.14(1). A
defendant assigned to the status of youthful trainee “shall not suffer a civil disability or loss of
right or privilege following his or her release from that status because of his or her assignment as
a youthful trainee.” MCL 762.14(2). “Unless the court enters a judgment of conviction against
the individual for the criminal offense . . . , all proceedings regarding the disposition of the
criminal charge and the individual’s assignment as youthful trainee shall be closed to public
inspection . . . .” MCL 762.14(4).
2
There are two databases, one accessible only by law enforcement and one accessible by the
public.
-2-
Before 1995, various forms of MCL 762.14 existed, none of which required a person
assigned to youthful trainee status to register as a sex offender. However, effective October 1,
1995, MCL 762.14 provided that “An individual assigned to youthful trainee status for a listed
offense enumerated in section 2 of the sex offenders registration act is required to comply with
the requirements of that act.” MCL 762.14(3).
B. The Sex Offenders Registration Act
In 1994, Michigan adopted the Sex Offenders Registration Act.3 SORA, as first enacted,
made registry information confidential and closed to inspection except for law enforcement
purposes. Thus, effective October 1, 1995, an offender assigned to youthful trainee status had to
register as a sex offender under SORA, but the registry was not public. As of September 1,
1999, however, SORA was amended to create the public sex offender registry (PSOR), which
can be accessed by anyone through the Internet. The PSOR provides names, aliases, addresses,
physical descriptions, birth dates, photographs, and specific offenses for all convicted sex
offenders in the state of Michigan. MCL 28.728(4)(a).
Effective October 1, 2004, the definition of “convicted” in SORA was amended to
include:
A. Being assigned to youthful trainee status under sections 11 to 15 of
chapter II of the code of criminal procedure, 1927 PA 175, MCL 762.11 to
762.15, before October 1, 2004.
B. Being assigned to youthful trainee status under sections 11 to 15 of
chapter II of the code of criminal procedure, 1927 PA 175, MCL 762.11 to
762.15, on or after October 1, 2004 if the individual’s status of youthful trainee is
revoked and an adjudication of guilt is entered.[4]
Thus, as of October 1, 2004, “convicted” no longer included an offender assigned to
youthful trainee status if the assignment occurred after October 1, 2004, unless such status was
revoked or an adjudication of guilt was entered. Because defendant was assigned to youthful
trainee status on August 29, 2004, he was considered “convicted” of attempted third-degree CSC
for purposes of registering as a sex offender. See People v Rahilly, 247 Mich App 108, 115; 635
NW2d 227 (2001) (“while MCL 762.14(2) provides that the assignment of an individual to
youthful trainee status does not result in a conviction, for purposes of the SORA, assignment to
youthful trainee status, in fact, constitutes a conviction”).
III. Analysis
Defendant argues that because he was adjudicated under HYTA he has no conviction
under that act and, therefore, labeling him as a convicted sex offender on the PSOR violates the
3
1994 PA 286, 287, 294, and 355.
4
2004 PA 240, MCL 28.722(a)(ii) (emphasis added).
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Cruel or Unusual Punishment Clause of the Michigan Constitution. This Court reviews
constitutional questions de novo. People v Pitts, 222 Mich App 260, 263; 564 NW2d 93 (1997).
A. Do the registration and notification requirements
of SORA impose punishment on defendant?
In In re Ayres, supra, this Court had to determine whether requiring juveniles who had
been convicted of certain specified sex offenses to register as sex offenders violated Michigan’s
prohibition against cruel or unusual punishment. This Court first recited the applicable general
rules:
Statutes are presumed to be constitutional, and the courts have a duty to
construe a statute as constitutional unless its unconstitutionality is clearly
apparent. The party challenging a statute has the burden of proving its invalidity.
[Ayres, supra at 10 (citations omitted).]
This Court found instructive “two recent federal court decisions that have held that the
registration and notification requirements of Michigan’s Sex Offenders Registration Act, as
applied to adult offenders, do not impose ‘punishment’ under the Eighth Amendment of the
United States Constitution.” Id. at 14. This Court quoted Doe v Kelley, 961 F Supp 1105, 1109
(WD Mich, 1997):
“On its face, the notification scheme is purely regulatory or remedial. It
imposes no requirement on the registered offender, inflicts no suffering, disability
or restraint. It does nothing more than create a mechanism for easier public
access to compiled information that is otherwise available to the public only
through arduous research in criminal court files.” [Ayres, supra at 15.]
This Court also quoted the following language from Lanni v Engler, 994 F Supp 849, 854 (ED
Mich, 1998):
“Dissemination of information about a person’s criminal involvement has
always held the potential for negative repercussions for those involved. However,
public notification in and of itself has never been regarded as punishment when
done in furtherance of a legitimate government interest. . . . The registration and
notification requirements can be more closely analogized to quarantine notices
when public health is endangered by individuals with infectious diseases. . . .
Whenever notification is directed to a risk posed by individuals in the community,
those individuals can expect to experience some embarrassment and isolation.
Nonetheless, it is generally recognized that the state is well within its rights to
issue such warnings and the negative effects are not regarded as punishment.”
[Ayres, supra at 18.]
But, this Court observed in Ayres that
the portion of the act that was the primary focus of constitutional scrutiny in
Kelley and Lanni–the public notification provision–is obviously not at issue in the
present case because respondent, a juvenile offender, is expressly exempted from
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this section of the act. As previously noted, registration information pertaining to
juveniles not charged as adults is confidential and is to be used only by law
enforcement personnel. MCL 28.728(2); MSA 4.475(8)(2), MCL 28.730(2), (3);
MSA 4.475(10)(2), (3). Consequently, respondent cannot complain that the
“sting of notification,” Lanni, supra at 854, subjects him to undue public
ostracism that confounds the purpose of the Juvenile Code. [People v Poindexter,
138 Mich App 322; 361 NW2d 346 (1984)].
Indeed, in our view, the fact that public access to registration data
regarding juveniles is foreclosed only serves to underscore the federal courts’
ultimate conclusion that the registration requirement of the act is not, in the
constitutional sense, a form of “punishment.” Reiterating the Lanni court’s
observation, supra at 853, “A law designed to punish a sex offender would not
contain these strict limitations on public dissemination.” The Legislature’s
restrictive approach in applying the act to juvenile offenders, carefully
circumscribing access to such registration data and exempting juvenile offenders
from the public notification requirements of the act, evinces a broad remedial, not
punitive, purpose. [Id. at 18-19.]
This Court arrived at the following conclusion:
In light of the existence of strict statutory safeguards that protect the
confidentiality of registration data concerning juvenile sex offenders, we conclude
that the registration requirement imposed by the act, as it pertains to juveniles,
neither “punishes” respondent nor offends a basic premise of the juvenile justice
system–that a reformed adult should not have to carry the burden of a continuing
stigma for youthful offenses. The confidential collection and maintenance of
juvenile offender registration data by law enforcement authorities serves an
important remedial function and is not so punitive in form and effect as to render
it unconstitutional “punishment” under Const 1963, art 1, § 16. [Id. at 21.]
Ayres was decided under SORA as first enacted, when public access to registration data
was foreclosed. The essential underpinning of the conclusion in Ayres that the registration
requirement imposed by SORA does not punish was the fact that strict statutory guidelines
protected the confidentiality of registration data concerning juvenile sex offenders. This premise
is no longer valid, however, because the creation of the PSOR in 1999 eliminated the
confidential nature of the sex offender registry. Indeed, in People v Wentworth, 251 Mich App
560, 568-569; 651 NW2d 773 (2002), this Court, while not directly presented with the issue,
questioned the continuing validity of Ayres:
In Ayres, supra, we held that the juvenile registration requirements of the
SORA did not constitute cruel or unusual punishment in part because juveniles
were exempt from the public notifications requirements of the act. Ayres, supra
at 20-21. We also concluded “[i]n light of the existence of strict statutory
safeguards that protect the confidentiality of registration data concerning juvenile
sex offenders” that the act did not offend the premise of our juvenile justice
system that “a reformed adult should not have to carry the burden of a continuing
stigma for youthful offenses.” Id. at 21. However, the recent amendment of the
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statute removing those confidentiality safeguards raises questions about the
continuing validity of our holding in Ayres. . . . [W]e invite the Legislature to
reconsider whether the implied purpose of the act, public safety, is served by
requiring an otherwise law-abiding adult to forever be branded as a sex offender
because of a juvenile transgression.
Defendant argues that publicly labeling him as a convicted sex offender and requiring
him to register pursuant to SORA, where he was assigned to youthful trainee status as a result of
conduct that occurred during a Romeo and Juliet relationship with his girlfriend before October
1, 2004, constitutes punishment that is cruel or unusual.
This Court first must determine whether the registration requirement constitutes
punishment in accordance with the facts of this case. “‘[P]unishment, generally, is the deliberate
imposition, by some agency of the state, of some measure intended to chastise, deter or discipline
an offender.’” Ayres, supra at 14, quoting Kelley, supra at 1108. Utilizing the factors set forth
in Ayres, “‘[D]etermining whether government action is punishment requires consideration of the
totality of circumstances, and particularly (1) legislative intent, (2) design of the legislation, (3)
historical treatment of analogous measures, and (4) effects of the legislation.’” Id. at 14-15,
quoting Kelley, supra at 1108. See also People v Golba, 273 Mich App 603, 618; 729 NW2d
916 (2007).
With respect to legislative intent, MCL 28.721a indicates the Legislature’s intent in
enacting SORA:
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.
The Legislature’s intent as set forth in express terms was not to chastise, deter, or discipline an
offender, but rather to “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.”
MCL 28.721a. However, the Legislature’s intention was frustrated in situations such as this,
prompting in part the October 1, 2004, amendment of SORA. The 2004 amendment was
motivated, in part, by concerns that “the reporting requirements are needlessly capturing
individuals who do not pose a danger to the public, and who do not pose a danger of
reoffending.” House Legislative Analysis, HB 4920, 5195, and 5240, November 12, 2003, at 1.
The concern also existed that
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[s]uccessful completion of sentence-like conditions [under HYTA] results in
dismissal of the charges and the person is deemed as having no conviction.
However, under the Sex Offenders Registry Act, trainee status is defined as a
“conviction,” and trainees are required to register like other sex offenders and
remain on the public list for 25 years. Many feel that the requirement to be
registered as a sex offender works against the philosophy of HYTA, which is to
give a break to first-time offenders who are likely to be successfully rehabilitated.
In the case of many convictions involving youthful offenders, offenses often
involve consensual sex between young teen lovers. Since these youths hardly fit
the definition of “sexual predator”, and since successful completion of trainee
status results in no conviction, advocates for youthful offenders have long desired
the laws to be amended to exclude non-predatory youths convicted of sex crimes
to be exempted from mandatory registration with the sex offenders registry. [Id.
at 2.]
It is incongruous to find that a teen that engages in consensual sex and is assigned to youthful
trainee status after October 1, 2004, is not considered dangerous enough to require registration,
but that a teen that engaged in consensual sex and was assigned to youthful trainee status before
October 1, 2004, is required to register. The implied purpose of SORA, public safety, is not
served by requiring an otherwise law-abiding adult to forever be branded as a sex offender
because of a juvenile transgression involving consensual sex during a Romeo and Juliet
relationship.
With respect to the design of the legislation, the courts in Kelley, supra at 1109, and
Lanni, supra at 853, found that the notification scheme in SORA was purely regulatory and
remedial. The courts indicated that the statute did not impose a requirement on the registered
offender, or inflict suffering, disability, or restraint. Kelley, supra at 1109; Lanni, supra at 853.
However, the Michigan Supreme Court has recognized that there is a social stigma attached to
convictions themselves. People v Smith, 423 Mich 427, 445 n 2; 378 NW2d 384 (1985). And,
the Court in Mollett v City of Taylor, 197 Mich App 328, 343; 494 NW2d 832 (1992), has
referred to a stigma as a disability, and it further indicated that a stigma or disability may deny an
individual freedom to take advantage of some employment opportunities, which is precisely
what defendant asserted happened to him in this case. Moreover, HYTA provides that an
individual assigned to youthful trainee status “shall not suffer a civil disability or loss of right or
privilege,” MCL 762.14(2), except to the extent that the individual is required to register
pursuant to SORA. MCL 762.14(3). Consequently, the language of HYTA implies that the
requirement for a youthful trainee to register as a sex offender results in a disability as well as a
loss of a right or privilege.
In this case, defendant actually suffered disability and losses of rights or privileges.
Under HYTA, “all proceedings regarding the disposition of the criminal charge and the
individual’s assignment as youthful trainee shall be closed to public inspection . . . .” MCL
762.14(4). Thus, unlike in Kelley, supra, and Lanni, supra, where the courts indicated that the
registration requirement did “nothing more than create a method for easier public access to
compiled information that is otherwise available to the public through tedious research in
criminal court files,” in this case, the registration requirement created public access to compiled
information that was otherwise closed to public inspection. Lanni, supra at 853; Kelley, supra at
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1109. The SORA requirement that youthful trainees register as sex offenders was effective
before SORA added its public notification procedures. Because MCL 762.14 is designed to
prevent youthful trainees from suffering a disability or losses of privileges and rights except with
respect to requiring registration, and because there was no public dissemination of the sex
offender registry at the time, it seems clear the Legislature did not intend to punish youthful
trainees by requiring them to register. The dissemination of nonpublic information through
SORA, however, had the opposite effect. The later SORA amendment removing those assigned
to trainee status after October 1, 2004, appeared to rectify that issue.
The amendment, however, did not assist defendant’s case. That defendant is suffering a
disability and a loss of privilege is further confirmed by the fact that there are not strict
limitations on public dissemination as there were in Lanni, supra. The Lanni court noted that the
registry limited searches so that a person living in a particular zip code can only search that zip
code on the registry. Lanni, supra at 853. Consequently, the court in Lanni found that a law
designed to punish a sex offender would not contain such strict limitations on dissemination. Id.
Searches on the sex offender registry are no longer limited, however, to the searcher’s zip code,
but rather the registry provides a searcher with information about every person registered as a
sex offender living in every zip code in the state.
The historical treatment of analogous measures is next considered under the Ayres test for
determining whether governmental action constitutes punishment. However, no analogous
measure exists, nor is there historical antecedent that relates to requiring a defendant to register
as a sex offender when the defendant was a teenager engaged in consensual sex and the
defendant was assigned to youthful trainee status after October 1, 1995, but before October 1,
2004.
Finally, under the Ayres test, the effects of the legislation are considered. A user of the
Michigan PSOR is provided with information stating that the intent of PSOR is “to better assist
the public in preventing and protecting against the commission of future criminal sexual acts by
convicted sex offenders” and that PSOR is “intended to provide the people of this state with an
appropriate, comprehensive, and effective means to monitor those persons who pose such a
potential danger.” See PSOR, <http://www.mipsor.state.mi.us> (accessed May 13, 2009).
While the government has always had the authority to warn the public about dangerous persons
and such warnings have never been understood as imposing punishment, Kelley, supra at 1111,
in this case, the warning is not about the presence of an individual who is dangerous. The
government is warning the public that defendant is dangerous, thus publicly labeling defendant
as dangerous. Such warning or “branding” in the context of this case clearly constitutes
punishment.
Further, the basic premise of HYTA is “to give a break to first-time offenders who are
likely to be successfully rehabilitated” by having the offender’s act not result in a conviction of a
crime and by requiring that the offender’s record not be available for public inspection. House
Legislative Analysis, HB 4920, 5195, and 5240, November 12, 2003, at 2. However, the PSOR
provides a “Conviction Date” of July 13, 2004, for defendant.
See PSOR,
<http://www.mipsor.state.mi.us> (accessed May 13, 2009). Consequently, by requiring
defendant to register for 10 years, defendant is forced to retain the status of being “convicted” of
an offense, thus frustrating the basic premise of HYTA.
-8-
Defendant convincingly asserts that the effects upon him have been devastating.
Defendant argues that he has been unable to find work as a result of being listed on the sex
offender registry. He asserts that when he applies for work, he correctly states that he does not
have a criminal record. However, because information about him is publicly available through
the sex offender registry, which can be accessed through the Internet, employers still discover the
information. Defendant asserts that he applied unsuccessfully for approximately 75 jobs at fastfood establishments, factories, foundries, retail establishments, and the local mall. He was
unable to find work through temporary agencies or with the assistance of job counselors. He was
able to get hired at Burger King and Meijer, but in both cases was let go after the results of the
record check were returned, which indicated that he was a registered sex offender. Defendant
contends that while he can honestly tell employers that he does not have a criminal record, this is
of little use when information about him is publicly available on the Internet. Thus, being listed
on the registry has resulted in devastating financial and emotional consequences for him. He
further asserts that because of his inability to work, he must rely on food stamps. He was also
diagnosed with depression and believes that this was the direct result of the emotional and
financial consequences of having to register as a sex offender. On the basis of the foregoing,
defendant asserts that the financial and emotional consequences of requiring him to register have
been devastating and thus requiring him to register as a sex offender, under the circumstances of
this case, should be deemed punishment.
Given the totality of the circumstances as set forth above, we conclude that the
registration requirement under SORA, as applied to defendant, constitutes punishment.
B. Do the registration and notification requirements
of SORA impose cruel or unusual punishment on defendant?
Determining whether a punishment is cruel or unusual requires consideration of the
gravity of the offense, the harshness of the penalty, a comparison of the penalty to penalties for
other crimes in this state, a comparison of the penalty to penalties imposed for the same offense
in other states, and the goal of rehabilitation. People v Launsburry, 217 Mich App 358, 363; 551
NW2d 460 (1996).
Here, the circumstances of the offense are not very grave. Defendant was 18 years old
and in a consensual sexual relationship with another teen who was almost 15 years old. The
other teen’s parents knew of the relationship and condoned it. This other teen is the same person
defendant married five years later. The gravity of the offense does not change regardless of the
date on which the assignment to youthful trainee status occurred.
The penalty in this case, however, has been harsh. Defendant is being required to register
as a sex offender for 10 years. He receives the social stigma of being labeled as a sex offender
and the social stigma of being “convicted” of a crime even though he successfully completed his
status as a youthful trainee and the court dismissed the proceedings. As a result of registering as
a sex offender, defendant has been unable to find employment and, in fact, lost two jobs after it
was discovered that his name is on the sex offender registry. He is depressed and, although he
finally married NT, the opportunity to marry and pursue happiness was withheld from him
because of his inability to find employment as a result of being labeled a convicted sex offender.
Given the circumstances of this case, the offense that defendant committed was not very grave,
but the penalty has been very harsh.
-9-
With regard to a comparison of the penalty to penalties for other crimes in this state,
defendant would not have had to register as a sex offender had he been assigned to youthful
trainee status approximately one month later than he was. Defendant is required to register as a
sex offender along with rapists and pedophiles. The PSOR does not provide a description of an
offender’s offense. Thus, individuals viewing the PSOR are unable to determine whether a
person who is registered is a rapist, a pedophile, or just a person who engaged in consensual
sexual activity with a teen.
With regard to a comparison of the penalty to penalties imposed for the same offense in
other states, USA Today reported on July 24, 2007:
More states are bucking the national crackdown on sex offenders by
paring back punishment for teens who have consensual sex with underage
partners.
Governors in seven states have signed bills in the past two months that
mean no prosecution for some teens or no requirement to register as a sex
offender.
States vary widely in how they prosecute consensual teen sex, which
prosecutors refer to as “Romeo and Juliet” cases, but some remain tough on teens
who are several years older than their partners. [USA Today, States ease laws
that punish teens for sex with minors <http://www.usatoday.com/news/nation/
2007-07-24-teen-sex-offenders_N.htm> (accessed May 13, 2009).]
In Wallace v State, 905 NE2d 371, 384 (Ind, 2009), the Indiana Supreme Court recently found
that Indiana’s sex registration law, as applied to the defendant in that case, was punitive. The
court noted that “the Act makes information on all sex offenders available to the general public
without restriction and without regard to whether the individual poses any particular future risk.”
Id. Consequently, “if the registration and disclosure are not tied to a finding that the safety of the
public is threatened, there is an implication that the Act is excessive.” Id. at 383. The court
found that “the non-punitive purpose of the Act, although of unquestioned importance, does not
serve to render as non-punitive a statute that is so broad and sweeping.” Id. at 384. Because
defendant’s registration is not tied to a finding that the safety of the public is threatened, the
registration requirement, as applied to defendant, is excessive. Id. at 383. Hence, the
registration requirement, as applied to defendant, is punitive. Id. at 384. Moreover, even the
Michigan Legislature noted that “[s]ome states reserve sex offender registration for those
individuals who truly represent a danger to the public and have a high risk of reoffending.”
House Legislative Analysis, HB 4920, 5195, and 5240, November 12, 2003, at 6. Other states
are recognizing the need to distinguish between people who truly represent a danger to the public
and those who do not. The penalties imposed for the same Romeo and Juliet offense in some
other states are less severe.
Also, it is abundantly clear that there is no goal of rehabilitation in this case. Defendant
never posed a danger to the public or a danger of reoffending. Defendant is not a sexual
predator, nor did the trial court deem him to be. Further, even if defendant needed rehabilitation,
SORA’s labeling him to be a convicted sex offender works at an opposite purpose, preventing
defendant from securing employment and otherwise moving forward with his life plans.
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Consequently, after considering the gravity of the offense, the harshness of the penalty, a
comparison of the penalty to penalties imposed for the same offense in other states, and the goal
of rehabilitation, we conclude that requiring defendant to register as a sex offender for 10 years
is cruel or unusual punishment. We vacate the trial court’s April 1, 2008, order and remand the
case to the trial court to enter an order consistent with this decision.
Vacated and remanded. Jurisdiction is not retained.
/s/ E. Thomas Fitzgerald
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
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