Mandatory Sex Offender Registration Unconstitutional for Colorado Juveniles

Note: This post is adapted from an article I wrote for Criminal Legal News Magazine (criminallegalnews.org). Please contact them for permission to use any part of this article. Thanks —

Dale Chappell, the Zen Law Guy

Colorado Supreme Court Declares Mandatory Lifetime Sex Offender Registry Unconstitutional for Juveniles

By Dale Chappell

The Colorado Supreme Court held on June 29, 2021, that mandatory lifetime sex offender registration for multiple sex offenses committed as a juvenile constituted a punishment that was cruel and unusual punishment, in violation of the U.S. Constitution’s 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 (CSORA) mandated lifetime registration with no option to petition for removal. C.S.R. sections 16-22-101 to 115. In 2015 he petitioned again, this time with counsel, further arguing that lifetime sex offender registration for offenses committed as a juvenile violated the Eighth Amendment’s ban on 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 was a punishment that was cruel and unusual under the Eighth Amendment. The court held that while the legislature didn’t intend for sex offender registration to be punitive, it “in effect” amounted to punishment for several reasons. This included that there was 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 says: “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 further held 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 in 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 norms of society change.” Graham v. Florida, 560 U.S. 48 (2010).

Juveniles are “Different” from Adults

A lot has changed with punishment regarding juveniles over the last decade, the Colorado Supreme Court said. Citing the three cases noted above, the Court said they shed a different light on mandatory punishments for juvenile offenses. “Taken together, these cases establish that children are constitutionally different from adults for purposes of sentencing.” The Court reasoned 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. “Both common sense and social science confirm that juveniles frequently demonstrate a lack of maturity and an underdeveloped sense of responsibility that often results in impetuous and ill-considered actions and decisions. And compared to adults, juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”

In short, mandatory punishments that are constitutional when applied to adults can violate the Eighth Amendment when applied to juveniles, the Court concluded.

To be clear, though, the Court recognized that courts of appeals in Colorado and other states have held that changes to sex offender registries are not punishments 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 in the courts, the Court said, collecting cases from Ohio, Pennsylvania, and Kansas, where the courts there held that mandatory lifetime sex offender registration was cruel and unusual punishment on juveniles.

These courts have invoked the evolving harshness of the sex offender registry to find that this burden was a “punishment” on juveniles. Like the Colorado Supreme Court, those courts cited the U.S. Supreme Court`s three cases noted on mandatory juvenile punishments, Ropers, Graham, and Miller, to show that juveniles are “unique.”

CSORA is a Punishment

As noted, the Court acknowledged that lawmakers did not intend for Colorado’s sex offender registry to be a punishment. But that is not enough. Instead, there`s a two-part “intent-effects” test the court uses to determine whether a statute is a punishment. This was important, the Court said, because the registry could only violate the Eighth Amendment if it was a punishment. This test looks at not only the intent of lawmakers in enacting the law, but also whether the law “in effect” makes it a punishment. The Court found this second part to be the case here.

There are several factors under the intent-effects test, and nearly all of them weighed in favor that CSORA’s mandatory lifetime registry for juveniles was a punishment. One factor was that a juvenile is subject to criminal sanctions for failure to comply. This is “all the more onerous when applied to a juvenile offender whose youth typically means that he will be subject to such requirements for more years and a greater percentage of his life” than an adult, the Court said.

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 provided studies that showed 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

Whether CSORA was a cruel and unusual punishment came down to whether the law was a “disproportionate” punishment for juveniles, the Court said. Only nine state have mandatory lifetime sex offender registration laws for juveniles, which made CSORA’s mandatory registration for juveniles “truly unusual,” the Court concluded. But was it also “cruel” to meet the Eighth Amendment`s standards?

“While mandatory lifetime sex offender registration for juveniles is not as drastic as the sentences at issue in Roper, Graham, and Miller, it is a severe punishment nonetheless,” the Court said. “Sex 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 begin 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,” and “nearly one in five juvenile registrants had attempted suicide.”

The effects are even more damaging on juveniles, the Court said: “The 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 explained, 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.”

Conclusion

The Court concluded that CSORA’s mandatory lifetime sex offender registration requirement for those with multiple juvenile sex offenses was indeed a punishment and one that was cruel and usual under the Eighth Amendment. It therefore affirmed the court of appeals’ ruling and remanded with instructions for the juvenile court to hold a new hearing on T.B.’s petition for deregistration. See: People in the Int. of T.B., 19SC690, 2021 CO 59 (June 28, 2021).

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