IN RE TD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of TD, Minor.
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 26, 2011
Petitioner-Appellant,
v
No. 294716
Washtenaw Circuit Court
Family Division
LC No. 2006-001101-DL
TD,
Respondent-Appellee.
Before: METER, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE, J. (concurring)
I concur with the majority because the majority correctly explains that registration under
the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., is not “punishment” under
Michigan law. Therefore, the trial court impermissibly determined that it constituted “cruel and
unusual punishment” here. I write separately because I believe the trial court expressed very
well-founded concerns that merit further discussion.
Obviously, I do not take any exception to the purposes and legitimacy of SORA’s
registration requirements. Indeed, I expressly approve of it. See People v Golba, 273 Mich App
603, 620; 729 NW2d 916 (2007). My concern is with the public nature of the registration here
for a defendant who was charged and convicted as a juvenile. Michigan has a public policy, as
reflected in our history and our statutes, of protecting juveniles and treating them specially, even
when finding them responsible for reprehensible acts. The probate courts may (and in some
cases must) waive jurisdiction and as a result, minors may be prosecuted as adults. See People v
Conat, 238 Mich App 134, 139-143; 605 NW2d 49 (1999). However, unless a waiver occurs,
“our justice system has distinguished between juvenile delinquency and adult criminal conduct.”
In re Wentworth, 251 Mich App 560, 568; 651 NW2d 773 (2002).
“Evidence regarding the disposition of a juvenile under [the probate code] and evidence
obtained in a dispositional proceeding under this chapter shall not be used against that juvenile
-1-
for any purpose in any judicial proceeding except in a subsequent case against that juvenile
under this chapter.” MCL 712A.23.1 The purpose of this statute is to protect minors from the
public being aware of immature mistakes.2 People v Smallwood, 306 Mich 49, 53; 10 NW2d
303 (1943); Wentworth, 251 Mich App at 568. The goal of rules sealing or expunging juvenile
records “is to prevent a juvenile record from becoming an obstacle to educational, social, or
employment opportunities.” People v Smith, 437 Mich 293, 302-303; 470 NW2d 70 (1991)
(LEVIN, J.). Indeed, “the paramount purpose of the juvenile section of the Probate Code is to
provide for the well-being of children.” In re Macomber, 436 Mich 386, 390; 461 NW2d 671
(1990). Indeed, proceedings against juveniles are not even considered criminal proceedings.
Wentworth, 251 Mich App at 568.
Registration cannot violate the prohibition against cruel or unusual punishment unless it
is, in fact, “punishment.” In re Ayres, 239 Mich App 8, 14; 608 NW2d 132 (1999). While I
agree with the majority that Ayres remains valid and binding law, I think it is a closer question
than does the majority, because at the time of the trial in Ayres, the registration database was
only available to the public during normal business hours through law enforcement authorities,
and information about registrants who had been juvenile offenders was not available to the
public at all. See Ayres, 239 Mich App at 12, 18-19. Although the Ayres Court did adopt the
analyses of federal courts holding that sex offender registration and notification was not cruel
and unusual, it concluded that
[i]n 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,
1
While respondent’s “general” records would be “open to the general public,” MCR
3.925(D)(1), I disagree with the majority’s conclusion that there is no substantive difference
between a file available upon request by someone who knows of its existence and takes the
trouble to request it, and a public database on the internet available to any idly curious person
with no investment of time or energy whatsoever and possibly even by accident. There are
degrees of openness, and obscurity is itself a measure of privacy protection, albeit not a complete
one.
2
The trial court found that the assault was more in the nature of juvenile horseplay that got
carried away than truly predatory sexual conduct, and that it was a fairly low-severity offense. I
am unsure I would be so dismissive of an attack that left the victim so traumatized. But the trial
court is in the best position to evaluate the demeanor and credibility of witnesses before it, and it
found that respondent understood the gravity of his offense, has been impressively courteous and
respectful, and is at a very low risk for recidivism. More tellingly, the prosecutor conceded that
respondent was offered a plea agreement that would not have required him to register as a sex
offender, and indeed the prosecutor was of the view that such registration was unnecessary.
However, my view in this case is based strictly on respondent’s status as a juvenile offender.
Had respondent lacked any mitigating characteristics, the prosecutor could have moved to have
him waived to adult courts, MCL 712A.4, obviating the instant discussion. The prosecutor did
not even attempt to do so here.
-2-
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. [Ayres, 239 Mich App at 21.]
In fact, the Ayres Court deemed highly important to its conclusion that registration was not
constitutional “punishment” the “fact that public access to registration data regarding juveniles is
foreclosed.” Ayres, 238 Mich App at 19. But in September of 1999, SORA was amended to
create a public, internet-accessible registry available to anyone, including registrants who had
been juvenile offenders. People v Dipiazza, 286 Mich App 137, 142-143; 778 NW2d 264
(2009). I believe that the majority is too dismissive of the burden the public nature of
registration places on registrants. See id. at 152-153.3
However, the mere fact that a state action is onerous does not, by itself, make that action
a “punishment.” As I have said, the purpose of SORA is noble and simply cannot be carried out
without burdening some individuals. “Unfortunately the scheme has never yet been devised by
human invention by which the power to do great good has not been mingled with the power to do
some evil.” People v Gallagher, 4 Mich 255, 255 (1895). The purpose of SORA is to protect
the public and help people to protect themselves against predators, thereby reducing recidivism,
empowering people, promoting safety in general, and preventing one of the more horrific kinds
of crime in particular. It does not purport to have any rehabilitative value for registrants, but at
the same time, any harm to registrants is simply incidental. I do not believe we should therefore
pretend that no such harm transpires, but the critical problem is simply that registering people
who are demonstrably not dangerous makes it more difficult conceptually to regard SORA as the
non-punishment tool it should be.
This is thrown into sharp relief here, where the burdens of registering run directly
contrary to the purposes of our law regarding juveniles. Even further, where there is good reason
to find that the registrant is not a predator and is highly unlikely to be a sexual offender again in
the future requiring his registration actually undermines the important purpose underlying
SORA. It would encourage members of the public to demonize and fear a person who is, it
seems, at least no more dangerous than any other member of the public.4 Simultaneously, it
3
However, I agree that Dipiazza is critically distinguishable because the registrant in Dipiazza
was technically not convicted of an offense for which registration would have been required, and
he factually did not even commit a nonconsensual act. I think it is highly significant that the
prosecutor did not believe respondent here really needed to be on the registry and that respondent
was found responsible as a juvenile rather than as an adult. But he has been technically
“convicted,” MCL 28.722(a)(iv), and while this Court should defer to the trial court’s factual
findings, including that respondent engaged in more of a prank than a predation, what he did was
not consensual. Respondent here simply has a record that the registrant in Dipiazza did not.
4
Again, the prosecutor could have moved to charge respondent as an adult, because he was at
least 14 years old and charged with what would have been a felony for an adult. MCL 712A.4.
Had respondent been charged with CSC I, the prosecutor could have charged respondent as an
adult without seeking a waiver from the trial court. MCL 764.1f.
-3-
would encourage members of the public to trivialize the predators who really are dangerous.
Compelling registration of individuals who can be, with some degree of reliability, determined to
be non-threats thereby reduces—at least to some extent—SORA from a tool that empowers
people and communities to help protect themselves to a pointlessly life-destroying piece of
“security theater.5” Divesting the trial court of the power to relieve persons such as respondent
from the requirement of registration makes the world less safe for all of us.
Nevertheless, this is a policy decision. I believe very strongly that SORA is a vital and
powerful tool. I am concerned that its efficacy is drastically impaired by the registration of
people known not to be likely predators and of juvenile offenders who were not deemed
sufficiently dangerous to warrant even an attempt to have them waived to an adult court; the
latter undermines the purposes of our juvenile justice system, as well. I strongly urge our
Legislature to consider giving our trial courts the means to enhance SORA by exercising
discretion to deregister or decline to register people who can be shown to be non-dangerous. But
I cannot agree with the trial court that respondent’s registration here constitutes cruel and
unusual punishment; it is simply unwise.
/s/ Amy Ronayne Krause
5
“Security theatre” refers to undertakings that provide only a feeling of security instead of
providing real security. See Schneier, Bruce, Beyond Fear: Thinking Sensibly about Security in
an Uncertain World. (New York: Copernicus Books, 2003), pp 38-40.
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
