In these cases, consolidated on appeal, the defendants were convicted of felonies and sentenced to serve terms in prison. In the leading McFarlin case (People v McFarlin, 41 Mich.App. 116 ) a panel of the Court of Appeals, differing with an earlier panel's decision in People v Coleman, 19 Mich.App. 250 (1969), held that a judge may not consider an adult offender's juvenile offense record as a factor in imposing sentence upon him, and remanded McFarlin for resentencing. The other consolidated cases concern the same issue.
We are of the opinion that the Coleman decision was correct and, therefore, reverse McFarlin and dispose of the other consolidated cases accordingly.
At issue is the restriction on the use of an offender's juvenile record found in the chapter of the Probate Code concerning juveniles and the juvenile division of the probate court:
"A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter." MCLA 712A.23; MSA 27.3178(598.23).
The defendants stress the words prohibiting use of a juvenile record "for any purpose whatever," while the people contend that a judge who takes a juvenile record into consideration at sentencing is not using it as "evidence".
Separate courts for juveniles were established in a number of states at the turn of the century. Illinois, in 1899, was the first to act.
This Court has said that where "language is of doubtful meaning, a reasonable construction must be given, looking to the purpose subserved thereby. Its occasion and necessity are matters of judicial concern, and its purpose should be effected if possible. Its spirit and purpose should prevail over its strict letter. Injustice in its application should be prevented, and absurd consequences avoided." (Citations omitted.) Webster v Rotary Electric Steel Co, 321 Mich. 526, 531 (1948).
Few words have a "content so intrinsic" that their meaning does not become doubtful in the context of a particular question. Wyandotte Savings Bank v State Banking Commissioner, 347 Mich. 33, 40 (1956). G.A. Endlich, in his treatise on statutory construction, said:
"Language is rarely so free from ambiguity as to be incapable of being used in more than one sense; and to adhere rigidly to its literal and primary meaning in all cases would be to miss its real meaning in many. If a literal meaning had been given to the laws which forbade a layman to lay hands on a priest, and punished all who drew blood in the street, the layman who wounded a priest with a weapon would not have falled within the prohibition, and the surgeon who bled a person in the street to save his life, would have been
The sharp division in the Court of Appeals on this issue in the literally dozens of cases decided since these consolidated cases were decided may impart that the language expressing the restriction on the use of juvenile record is subject to more than one construction.
We seek to ascertain and give effect to the intention of the Legislature. Grand Rapids v Crocker, 219 Mich. 178, 182 (1922). But, as Karl Llewellyn observed, only infrequently "a legislative intent with some concrete reality can be uncovered in circumstance or legislative history. For the rest, the court's work is not to find, any more than it is with case law. It is to do, responsibly, fittingly, intelligently, with and within the given frame." (Emphasis by author.) Llewellyn, The Common Law Tradition, Deciding Appeals, p 382. Much the same point was made in language quoted approvingly in Wyandotte Savings Bank v State Banking Commissioner, supra, pp 40-41: "`"the intention is to be taken or presumed, according to what is consonant to reason and good
The teleological approach has great appeal to judges who recognize that law should make sense to the people who must live with it. In Magnuson v Kent County Board of Canvassers, 370 Mich. 649, 657 (1963), this Court said: "We may in the construction of an ambiguous statute look to the result of the construction to aid us in determining legislative intent."
In many states the restriction, worded like ours, states that an offender's juvenile record shall not be admissible or usable against him in subsequent proceedings in other courts "as evidence". Michigan, along with a few other states, adds emphatically, "for any purpose whatever". In other states the limiting words "as evidence" are not used. In still others, the legislatures have added that juvenile court adjudication shall not be deemed to be a conviction. There are still other variations.
Although these comparable provisions are almost as venerable as Michigan's, only recently have appellate courts considered whether these provisions preclude a judge from considering an adult offender's juvenile record as a factor in imposing sentence. We have not been cited to, nor have we been able to uncover, any case where the issue was raised before 1958.
The Alaska Court reasoned:
"A judge, of all persons, should be most cognizant of the existence and meaning of AS 47.10.080(g), and of the fact that under that statute a juvenile offender may not be considered a criminal even though he has suffered a criminal conviction. But the judge cannot simply ignore that phase of appellant's life — before he reached 18 years of age — as though it did not exist —
An Illinois intermediate appellate court,
These decisions from other states are certainly not controlling; indeed, only the Delaware and Illinois statutes contain the same language found in the Michigan statute. Nevertheless, they reveal that the clear weight of judicial authority is in favor of full disclosure of the defendant's past, including his juvenile court history, to the sentencing judge.
These statutory restrictions on the use of a juvenile record were adopted at a time when the emphasis in sentencing was more on the crime
Michigan's 1903 indeterminate sentence act did not advert to the history of the offender.
Another 1903 act authorized judges to place convicted persons on probation under the supervision of probation officers. The act also required a probation officer, if directed by the court, to "inquire into the nature of any criminal case" and permitted him to recommend probation.
The 1913 probation act provided that, when so directed by the court, the probation officer "shall inquire into the antecedents, character and circumstances of any person or persons accused within the jurisdiction of such court, and shall report thereon in writing to such court or magistrate".
"Before sentencing any person charged with a felony, and, if directed by the court in any other case where any person is charged with a misdemeanor within the jurisdiction of the court, the probation officer shall inquire into the antecedents, character and circumstances of such person or persons and shall report thereon in writing to such court or magistrate." MCLA 771.14; MSA 28.1144.
In the light of this history, it is apparent that whatever was meant by the language chosen in 1905 to express the limitation on the use of an offender's juvenile record in subsequent proceedings, the Legislature was not thinking about the present practice of probation officers assembling comprehensive information to assist the judge in his sentencing decision.
In 1905 judges made their own presentence inquiries.
Although the language of the 1905 act obliging the judge to make his own inquiries and to enter the causes of the criminal character or conduct in the minutes of the court has been carried forward as part of the present indeterminate sentence law (see MCLA 769.8; MSA 28.1080), it is the probation officer who now assembles the requisite information. We perceive the reallocation of this task, along with the 1913 and 1931 probation acts' greater emphasis on presentence reports, especially the 1913 provision requiring inquiry concerning the antecedents, character and circumstances of the offender, as reinforcing the view that the Legislature did not intend to cut off from the judge's view information concerning juvenile misconduct and offenses.
The Court of Appeals in McFarlin stressed the difference between juvenile and adult proceedings
In 1905, when the limitation on the use of a juvenile record was first enacted, juvenile courts were regarded as a more enlightened forum for the adjudication of offenses charged against a young offender. In that context, the Legislature could not have looked upon the restriction on the use of a juvenile record as a means of protecting juveniles from use against them of convictions obtained by an inferior process. The Due Process and Equal Protection concerns expressed by the United States Supreme Court and other courts first in the case of adults, and, following the added protection provided adult offenders, the increased attention given juvenile court procedures, are relatively recent developments.
Moreover, this argument ignores the real protections, including the right to a jury trial and a qualified right to counsel, accorded juvenile defendants in Michigan since juvenile courts were first established in this state.
A probation officer who questions a convicted adult offender awaiting sentencing, his acquaintances, members of his family, the victims of his offenses, witnesses and others, is likely to develop information concerning prior misconduct and offenses claimed to have been committed by the offender as a juvenile. Are we then to bar the sentencing judge from learning whether a charge was actually prosecuted, the offender actually convicted, the character of the sentence imposed and the result of any effort to rehabilitate the offender? If we keep this information from the judge, he would still know about the alleged offense. Yet lacking the benefit of the juvenile judge's evaluation, he would be left to surmise the outcome.
Those who would prohibit consideration of an offender's juvenile record at sentencing recognize that the restriction does not preclude a judge from learning of the offender's juvenile background. As
"The statutory restraint of MCLA 712A.23; MSA 27.3178 (598.23) on the use of a juvenile record does not preclude the development and presentation of a report which indicates the conduct, character and behavior of the defendant during the period he is within the jurisdictional age of juvenile authorities. The statute barring the use of juvenile records as evidence `for any purpose whatsoever' prohibits a sentencing judge from relying on the use of a juvenile record for the result of the juvenile court adjudicative process." People v Chappell, 44 Mich.App. 204, 208-209 (1972).
If the judge is not to be shielded from all knowledge of the offender's juvenile history, we see no sound reason why the official record of his court history alone should be kept from the judge, why the probation officer and the judge should be required to do indirectly — by inquiry of the accused, his acquaintances, friends, family, victims and witnesses of his depredations, and the like — what can be done directly with greater efficiency and accuracy.
In this connection it is noteworthy that, by act of the Legislature, the state department of social welfare and the probate courts are obliged to furnish the department of corrections, on request, information concerning a person having a record as a juvenile probationer.
If we were to prohibit the use of a juvenile record at sentencing, many offenders would waive this "privilege". A young adult offender who does not have a juvenile record would so inform the judge or probation officer and authorize a check of juvenile court records to verify that his record was clear. Offenders who have a history of juvenile misconduct resolved in their favor by a referee or juvenile judge would waive. In consequence a negative inference might be drawn against those who did not waive.
If — in an effort to enforce an absolute restriction on the use of juvenile records — we were to bar all waivers of the restriction and prohibit any consideration by the sentencing judge of juvenile history, the best and the worst sentencing risks might be indistinguishable. A judge hesitant to take risks, uncertain whether a young adult offender is a first offender, might sentence him to prison when, with complete information, he would place him on probation or sentence him under the Holmes Act.
The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence. A defendant's juvenile court history may
Some adult offenders may indeed serve longer prison sentences because of information developed from the official juvenile court record. But others, because the presentence report is a complete and reliable chronicle, may serve shorter sentences or not be imprisoned at all. Such differentiation in sentencing predicated on differences in the backgrounds of offenders is contemplated by the indeterminate sentencing and probation acts. The objectives of those acts and of the restriction on the use of a juvenile record are entirely reconcilable.
We conclude that the presentence report should include information concerning juvenile history, including a disposition by a juvenile court, and that it is proper to consider this information as a factor in sentencing an adult offender.
We recognize, as has been urged upon us, that a presentence report of a defendant's juvenile court history may be misleading, incomplete or inaccurate. Yet, under present practice, the defendant might not see the presentence report or have an opportunity to rebut any derogatory information. We also recognize that, for a variety of reasons, a juvenile offender may not vigorously defend a doubtful charge. Therefore, if an adult offender's juvenile history is a factor that may be considered in sentencing him, he should be given an opportunity to respond to the report.
Today, after consideration of comments from Bench and Bar, we adopted an amendment to the court rules implementing the proposed rule set forth in People v Malkowski, 385 Mich. 244, 250, n 5 (1971). The new rule provides for disclosure of the presentence report to the defendant as proposed in § 4.4 of the American Bar Association, Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures.
The judgments of the Court of Appeals are reversed in McFarlin and Rabb and affirmed in Loomis.
T.M. KAVANAGH, C.J., and T.E. BRENNAN, SWAINSON, and WILLIAMS, JJ., concurred with LEVIN, J.
T.G. KAVANAGH, J., concurred in the result.
M.S. COLEMAN, J. (concurring in part, dissenting in part).
I concur in the opinion of Justice LEVIN through section IV and dissent as to section V.
The issue raised in section V is whether or not presentence reports should be made available to defendants and their lawyers prior to sentencing. The question is not confined to juvenile records, but includes them.
The issue in section V is not before the Court and, not having been raised by either party, has not been briefed or argued. The discussion is not essential to the decision reached.
Section V addresses itself to a highly limiting although imprecise proposed court rule. The general result would be further to limit judicial discretion and make mandatory the inspection of all adult presentence reports by defendant's attorney and the defendant. Background material and recommendations arrived from the Supreme Court staff only today, which is two days prior to the time set for signing this opinion. Prompt consideration of McFarlin, Rabb and Loomis is valid because of the number of cases backed up awaiting the decision as to the issue of whether a juvenile record can be considered in an adult's presentence report. The relevant portion of the opinion (through section IV) resulted after extensive briefing, oral argument and Court discussion, so that Justice LEVIN'S thoughtful opinion to that point is ready for agreement or disagreement.
This is not at all true with the extra section. Some history is relevant for at least two reasons: (1) I believe the matter of the rule not appropriately before the Court, and (2) there is a lack of wisdom in rushing it in through the back door, as it were, before adequate current consideration can be given to such a dramatic change.
Supreme Court Administrative Rule 933 provides:
"Amendments to these rules shall be made by the adoption of an entire new or amended rule or sub-rule by the Supreme Court after giving reasonable notice to the Secretary of the State Bar of Michigan and to the
I suggest that "immediate action" is not necessary as to section V with the rule incorporated.
The material received today reveals that such a proposed rule was published in the State Bar Journal in 1971 and that the resultant comments reported to the Court on November 22, 1971, were so overwhelmingly negative that the matter was eventually tabled on March 29, 1972, more than a year before the matter comes before the new Court, ostensibly from "the table". We proceed by Robert's Rules of Order. The procedure which the Court followed is suspect under those rules.
However, disregarding rules of procedure, there is a more fundamental reason for careful consideration of the proposed rule incorporated by section V.
The comments which resulted from the 1971 publication were, in general, critical or questioning of all or parts of the proposal. It also should be noted that a Federal system survey of 689 judges of Federal Courts of Appeal, Federal district courts and Federal probation officers revealed that 91% opposed compulsory disclosure of presentence reports. After a three year study by the Judicial Conference, the United States Supreme Court approved
"The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government."
Some of the 1971 comments gleaned from a 22 page condensed report, carry a common thread of concerns worth exploring, such as:
The purpose is commendable, the vehicle is not.
As worded, the rule would impose immense appellate problems, not the least of which would concern efforts to interpret the last sentence:
"The action of the court in excepting information from disclosures shall be subject to appellate review."
Would the Court of Appeals have the right to alter a sentence which is within statutory limits? If remanded to a trial judge, what problems arise in a one-man circuit?
The mandatory rule would encourage "bootlegging" of information and a lessening of reliability.
The sentencing process would take on the aspects of another trial. (Query: Would the defendant have the right to subpoena witnesses to refute "derogatory information"?)
If the judge must decide what is derogatory and then whether it is to be excluded, giving reasons on the record for such exclusion, would not the purpose of that provision be defeated?
Would the person convicted then have a further right to Miranda warnings upon inquiries of the probation officer or judge?
Would he or she have the right to further jury determination of disputed facts in the report?
Because it is the general practice now to discuss this report with the lawyer, and/or the defendant, would the defendant be helped or harmed by the anticipated "bland" report from which a judge would gain only a partial picture?
These and many more concerns were expressed in 1971. The welfare of the defendant is of great importance and the need of the judge to know all that is reliable is inherent in any rehabilitative thrust.
In order to avoid mass confusion, unestimated expense and possible harm both to the defendant and the judicial system, it is my belief that this rule deserves more than perfunctory consideration.
Further, there is merit in the statement ending Justice T.E. BRENNAN'S concurring opinion in People v Anderson, 389 Mich. 155, 221 (1973):
"But, if our opinions are to be of any value as precedent, they should be limited to the enunciation of those rules of law which are decisional, related to the facts in the case before us, and supportive of the result arrived at."
I take issue with the premise upon which the conclusion in section V is based, to-wit:
No criteria for such assumptions are given and, I suggest, there are none to substantiate such conclusions.
First, the juvenile officers compiling the reports (comparable to presentence investigations) are highly trained people with the same educational requirements as adult probation officers and schooled in the importance of accuracy.
Second, it is the generally accepted policy of probate and juvenile judges to make these reports available to all lawyers involved. Whether there is or is not a lawyer representing the child, the judge (or referee in some cases) discusses the report and takes testimony on the record at the time of each disposition. Indeed, this hearing is limited by Juvenile Court Rules 7.2(e)(4), 8.1(b) and 8.3(b).
In essence, juvenile reports are subjected to strict rules and practices and must stand tests of accuracy above and beyond present requirements for adult presentence reports.
Next, it would be a rare judge indeed who might overstep those tightly proscribed limits as to proof of "charges" — even allowing for human frailty in this, as in all facets of life. Certainly, no such infirm generality as stated should be the basis for an important decision.
In the absence of (1) an accurate basis for the conclusion reached, (2) opportunities to hear all sides of the question and (3) a due consideration of
A revision in the majority opinion was this day received. It was confined primarily to the first sentence in section V and it is apparent upon the reading of that opinion and this opinion, dissenting is to that section. The basic reasoning remains the same, so in the interest of time, this concurrence in part and dissent in part remains as originally written.
The 1905 act, held unconstitutional in Hunt v Wayne Circuit Judges, 142 Mich. 93 (1905), was reenacted in substantially the same form with the constitutional defects remedied as 1907 PA 325 and 1907 PA (1st Ex Sess) 6. The compiler's note to 1915 CL 2011 states: "Former Acts 312 of 1905, and 325 of 1907, are undoubtedly superseded by this act (1907 PA [1st Ex Sess] 6). Act 325 of 1907 was expressly repealed 1915, p 407, act 240, Eff. Aug 24, Compilers' Section 69."
Colorado: "Any child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person, and shall be proceeded against as such in the manner hereinafter provided. A disposition of any child under this act, or any evidence given in such cause, shall not in any civil, criminal, or other cause or proceeding whatever in any court be lawful or proper evidence against such child for any purpose whatever, excepting in subsequent cases against the same child under this act." 1903 Colo Sess Laws, March 7, 1903. § 1.
In two states, South Carolina and Oregon, the statute, specifically addressing the question whether a sentencing judge should have access to the juvenile court history of the defendant, expressly permits it. See SC Acts 1936, May 4, 1936, No 809, § 36; Or Rev Stat (vol 3) 419.567(3)(a). It appears that the Oregon statute may have been passed during the pendency of the appeal in Mitchell v Gladden, 229 Or. 192; 366 P.2d 907 (1961). See fn 7, infra.
Deja v State, 43 Wis.2d 488; 168 N.W.2d 856 (1969). The Wisconsin statute reads "admissible as evidence."
Berfield v State, 458 P.2d 1008 (Alas, 1969). Alaska has an "admissible as evidence" statute.
Arizona v Fierro, 101 Ariz. 118; 416 P.2d 551 (1966). Arizona has an "admissible as evidence" statute.
Mitchell v Gladden, supra. Before it was amended (see fn 6, supra), the Oregon statute provided that the record of disposition is not competent evidence against the child. The Oregon Supreme Court focused on the language "against such child," reasoning:
"There is no proscription against the use of such evidence against a person after he has reached his majority. The obvious purpose of the statute is to protect a child from the stigma of his wrongdoing in his effort to rehabilitate himself. When he is no longer a child and when it is demonstrated by his conviction that he has not rehabilitated himself, there is no longer any reason to preclude the use of the evidence in the juvenile proceedings for the purpose of fixing his sentence."
State v Jones, 91 N.J.Super. 67; 219 A.2d 193 (1966). New Jersey also has an "admissible as evidence" statute.
True, until In re Gault, 387 U.S. 1; 87 S.Ct. 1428; 18 L Ed 2d 527 (1967), a juvenile court was not obliged to provide counsel. The statute provided, as above set forth, that, if the child or his parents desire but are unable to procure counsel, the court "in its discretion may appoint counsel". Some juvenile defendants may, indeed, have been unaware of the right to request counsel. Others may have been aware of the right but failed to exercise it. In other cases, the court may have refused a request for counsel. These circumstances may affect the usability or weight to be given to specific dispositions in adult sentencing but are not a good reason for excluding use of juvenile records where such circumstances are not present.