by Dale Chappell

The Supreme Court of Colorado held that mandatory lifetime sex offender registration for multiple sex offenses committed as a juvenile constitutes cruel and unusual punishment in violation of the Eighth Amendment.

T.B. was a juvenile when he committed two state sex offenses—one in 2001 at age 11 and one in 2005 at age 15. He petitioned the juvenile court in 2010 for removal from the Colorado Sex Offender Registry but was denied because he had more than one juvenile sex offense, and the Colorado Sex Offender Registration Act, §§ 16-22-101 to 115, C.R.S. (2020) (“CSORA”), mandates lifetime registration with no option to petition for removal. In 2015 he petitioned again, this time with counsel, arguing that lifetime sex offender registration for offenses committed as a juvenile violate the Eighth Amendment’s prohibition against cruel and unusual punishment. Again, the court denied relief, saying that only the legislature or a higher court could bypass the law. T.B. appealed.

A divided court of appeals reversed, concluding that CSORA’s mandatory lifetime sex registration is a punishment that’s cruel and unusual under the Eighth Amendment. The court stated that while the legislature didn’t intend for sex offender registration to be punitive, it “in effect” amounted to punishment for several reasons. This includes the fact that there is no way for a registrant with more than one juvenile sex offense to petition for removal from the registry. “Once the requirement to register for life is imposed, it remains in effect without regard to whether the registrant is a continuing danger to the public,” the court provided as one of the reasons it agreed with T.B. The State petitioned the Colorado Supreme Court for review, and T.B. cross-petitioned, which the Court granted in both respects.

The constitutional provision at issue was the Eighth Amendment to the U.S. Constitution, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The U.S. Supreme Court has noted that the thrust of the Eighth Amendment is that it “guarantees individuals the right not to be subjected to excessive sanctions.” Roper v. Simmons, 543 U.S. 551 (2005). The Court has stated that a punishment must be “graduated and proportioned to both the offender and the offense,” and that the Eighth Amendment must be construed according to “the evolving standards of decency that mark progress of a maturing society.” Miller v. Alabama, 567 U.S. 460 (2012). Though the Eighth Amendment standard remains the same, the application of that standard “must change as the basic mores of society change.” Graham v. Florida, 560 U.S. 48 (2010).

Juveniles Are ‘Different’ Than Adults

A lot has changed with punishment regarding juveniles over the last decade, the Colorado Supreme Court observed. Citing the three cases noted above, the Court said they reflect the U.S. Supreme Court’s evolving view on mandatory punishments for juvenile offenses. The Court explained that “[t]aken together, these cases establish that children are constitutionally different from adults for purposes of sentencing.” That is, “youth matters” in determining whether sanctions are appropriate. Miller.

The Court noted that several factors distinguish juveniles from adults when it comes to criminal liability. “First, juveniles’ increased susceptibility to outside pressure, immature behavior, and impulsiveness means that ‘their irresponsible conduct is not as morally reprehensible as that of an adult,’” the Court explained. Roper. “Both common sense and social science confirm that juveniles frequently demonstrate a ‘lack of maturity and an underdeveloped sense of responsibility’ that ‘often result[s] in impetuous and ill-considered actions and decisions.’” Id. Finally, in comparison to adults, the Court noted, “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Id. Consequently, mandatory punishments that are constitutional when applied to adults can violate the Eighth Amendment when applied to juveniles, the Court explained.

To be clear, though, the Court recognized that courts of appeals in Colorado and other states have held, in applying the U.S. Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003) (application of Alaska’s sex offender registration requirement to adult offenders convicted prior to its passage was nonpunitive and thus didn’t violate the Ex Post Facto Clause), that changes to sex offender registries are not considered punishments for Eighth Amendment purposes and can be applied retroactively to adults without violating the Ex Post Facto Clause of the Constitution.

But juveniles have had more success with this issue in the courts, the Court said, citing cases from Ohio, Pennsylvania, and Kansas, where the courts there held that mandatory lifetime sex offender registration constitutes cruel and unusual punishment with respect to juveniles. See In re C.P., 967 N.E.2d 729 (Ohio 2012); In re J.B., 107 A.3d 1 (Pa. 2014); State in Int. of C.K., 182 A.3d 917 (N.J. 2018).

CSORA Is Punishment

The Court determined that lawmakers did not intend for Colorado’s sex offender registry to be a punishment, noting that the § 16-22-112(1) expressly states that CSORA isn’t intended and shouldn’t “be used to inflict retribution or additional punishment on any person.” But that alone is insufficient in determining whether a statute constitutes punishment. Instead, the two-part “intent-effects” test articulated by the U.S. Supreme Court in Kennedy v. Mendoz-Martinez, 372 U.S. 144 (1963), is used by courts in making this determination. The U.S. Supreme Court described it as follows: “If the intention of the legislature was to impose punishment, that ends the inquiry;” however, if that wasn’t its intention, courts must determine whether the statute’s effects are so punitive as to override the legislature’s intent. Smith v. Doe, 538 U.S. 84 (2003).

Having determined that the intent behind CSORA was not punitive, the Court turned its attention to whether the effect is punitive. In making this determination, courts consider several factors, including: (1) “[w]hether the sanction involves an affirmative disability or restraint,” (2) “whether it has historically been regarded as a punishment,” (3) “whether it comes into play only on a finding of scienter,” (4) “whether its operation will promote the traditional aims of punishment—retribution and deterrence,” (5) “whether the behavior to which it applies is already a crime,” (6) “whether an alternative purpose to which it may rationally be connected is assignable for it,” and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Mendoza-Martinez.

The Court explained that although the scienter factor (intent or knowledge) weighs against punishment, the remaining factors convinced it that CSORA is punitive in effect. Most importantly, the Court noted that CSORA’s community notification “does not bear a rational connection to, and is excessive in relation to, CSORA’s nonpunitive purposes of protecting the community and aiding law enforcement.” The Court cited studies that show recidivism among juvenile offenders is low, and if it does occur, it’s usually within the first three years of release. “Because these punitive effects outweigh the General Assembly’s nonpunitive intent, we conclude that mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes a punishment,” the Court said.

CSORA Is Cruel and Unusual Punishment for Juvenile Sex Offenders

In determining whether the CSORA registration requirement at issue violates the Eighth Amendment’s prohibition against cruel and unusual punishment, the Court stated it must first look to “objective indicia of society’s standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice.” Graham. Then, it must determine, “in the exercise of [its] own independent judgment,” whether the registration requirement “is disproportionate punishment for juveniles.” Roper.

As to the first prong of the analysis, the Court noted that “a substantial majority of [other states] decline to impose mandatory lifetime sex offender registration on juvenile offenders like T.B.” Consequently, the Court concluded that CSORA is truly unusual and that the national consensus is against CSORA’s juvenile registration requirement.

Turning to the second prong, the Court stated that it must consider whether harshness of the punishment is disproportionate to the culpability of the offenders and whether the juvenile registration requirement serves a legitimate penological goal. Graham.

The Court stated that mandatory lifetime sex offender registration is a severe punishment, noting that “[s]ex offender registries broadcast juvenile offenders’ misdeed to the world, attaching a stigma that will last their entire lives. These juveniles are, in effect, branded as irredeemable—at a point when their lives have barely begun and before their personalities are fully formed.” The effects of public dissemination of their personal information is “often disastrous for juvenile offenders,” the Court noted. “Over half have experienced violence or threats of violence … nearly one in five juvenile registrants had attempted suicide,” the Court observed, adding “[t]he mandatory lifetime registration requirement, in effect, means denial of hope; it means that good behavior and character improvement are immaterial.” Juveniles have an “underdeveloped sense of responsibility,” the Court stated, and mandatory registration “stands in direct opposition to the goals of the juvenile justice system, which is primarily designed to provide guidance, rehabilitation, and restoration for the juvenile.”

Thus, the Court held that “mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes cruel and unusual punishment in violation of the Eighth Amendment.”

Conclusion

The Court held that “the legislature cannot, under the Eighth Amendment, mandate lifetime sex offender registration for offenders with multiple juvenile adjudications without providing a mechanism for individualized assessments or an opportunity to deregister upon a showing of rehabilitation.”

Accordingly, the Court affirmed in part and reversed in part the court of appeals’ judgment and remanded with instructions for the juvenile court to hold a new hearing on T.B.’s petition to deregister. See: People ex. rel. T.B., 489 P.3d 752 (Colo. 2021). 

Editor’s note: Anyone interested in this topic should read the Court’s full opinion, which contains fairly detailed discussions on the history and alleged rationale for sex offender registries generally.

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