Appellate Courts to Review Constitutionality of SORA as Applied to Juveniles?? Only Time Will Tell....
In a September 30, 2009 opinion, Washtenaw County Family Court Judge, Hon. Darlene O'Brien, called into question the constitutionality of SORA's application in juvenile cases. Specifically, O'Brien reasoned the mandatory reporting requirement as applied to juveniles does not serve a legitimate purpose given the most current evidence indicating a low recidivism rate for juvenile sex offenders in light of the overall purpose of juvenile law: rehabilitation not punishment.
Although the Court of Appeals has upheld the constitutionality of SORA's registration requirement as applied to juveniles, it did so in In re Ayers, decided in1999. At that time, juveniles were exempt from public registration. Since Ayers, juveniles are no longer exempt from public reporting. Also, in In re Wentworth, the COA questioned, "[T]he propriety of publicly and permanently labeling juveniles as convicted sex offenders" noting that, "public notification provisions of SORA appear to conflict with out traditional reluctance to criminalize juvenile offenses and our commitment to keep juvenile records confidential."
Judge O'Brien highlighted that the recidivism rates cited by the COA in Ayers are no longer accurate in light of recent published research. Without current data supporting high recidivism rates, or the protections afforded by non-public registration, Judge O'Brien concluded that mandatory reporting for a juvenile convicted of CSC II was unconstitutional.
As of this post, the prosecution has not filed an appeal. However, this issue has been a hot topic for Michigan practitioners since the opinion came out. If I asked my appellate Magic 8 Ball whether an appeal is likely, it would say, "All signs point to YES!"
