ACSOL’s Conference Calls

Conference Call Recordings Online
Dial-in number: 1-712-770-8055, Conference Code: 983459

Monthly Meetings | Recordings (7/10 Recording Uploaded)
Emotional Support Group Meetings

Click here to sign up now for ACSOL’s Online EPIC Conference: Empowered People Inspiring Change Sept 17-18
Download a PDF of the schedule


CO: “The ultimate scarlet letter”: A 29-year-old could get name off sex-offender registry for juvenile crimes if Denver court decides he’s being cruelly, unusually punished

[ – 6/22/19]

A 29-year-old Coloradan made to register as a sex-offender for the rest of his life because of two sexual offenses he committed as a child and teenager could get his name off the list if a Denver juvenile court determines the lifetime mandate is cruel and unusual punishment.

The development comes via a Colorado Court of Appeals decision, which the 29-year-old’s attorney, Gail Johnson, described as groundbreaking. The decision signals a changing attitude on how long juvenile sex offenders must be tied to their crimes, and it could pave the way for constitutional challenges to Colorado’s sex offender registry, experts said.

Under Colorado law, juveniles must be convicted of two sex crimes to receive mandatory placement on the lifetime sex offender registry. The lists were created so law enforcement and the general public could keep track of people once they have served their sentences. But critics say sex offender registries are punitive, causing people to lose jobs, housing and other opportunities for the rest of their lives.

The “decision joins appellate courts from other states around the country holding that because sex-offender registration is punitive, it must comply with the protections of the U.S. Constitution,” Johnson wrote in a news release.

Laurie Rose Kepros, director of sexual litigation for the Office of the State Public Defender, said the number of juveniles who commit two sexual offenses is “very small.”

“Where the case becomes very important is that it reflects a national sea-change in how courts are coming to terms with the reality that the sex offender registry is punishment, which I think the general public already understands,” Kepros said. “Most people think ‘Isn’t that what it’s for?’ It’s the ultimate scarlet letter.”

The 29-year-old was only identified as “T.B.” in court documents because the crimes happened when he was a juvenile.

T.B. was placed on the sex offender registry for unlawful sexual contact when he was 11-years-old. Four years later, T.B. pleaded guilty to a sexual assault, according to court documents. Afterward, T.B. completed probation and treatment for his sexual offenses. He has no additional criminal record, court documents said.

In 2010, a Denver juvenile court judge decided T.B. did not pose a risk of committing sexual offenses again and found that T.B. “earned the right not to have to register,” court documents said. The teen’s probation officer supported his removal from the sex offender registry, Johnson’s news release said.

Read more


We welcome a lively discussion with all view points - keeping in mind...  
    1. Your submission will be reviewed by one of our volunteer moderators. Moderating decisions may be subjective.
    2. Please keep the tone of your comment civil and courteous. This is a public forum.
    3. Swear words should be starred out such as f*k and s*t
    4. Please stay on topic - both in terms of the organization in general and this post in particular.
    5. Please refrain from general political statements in (dis)favor of one of the major parties or their representatives.
    6. Please take personal conversations off this forum.
    7. We will not publish any comments advocating for violent or any illegal action.
    8. We cannot connect participants privately - feel free to leave your contact info here. You may want to create a new / free, readily available email address.
    9. Please refrain from copying and pasting repetitive and lengthy amounts of text.
    10. Please do not post in all Caps.
    11. If you wish to link to a serious and relevant media article, legitimate advocacy group or other pertinent web site / document, please provide the full link. No abbreviated / obfuscated links.
    12. We suggest to compose lengthy comments in a desktop text editor and copy and paste them into the comment form
    13. We will not publish any posts containing any names not mentioned in the original article.
    14. Please choose a short user name that does not contain links to other web sites or identify real people
    15. Please do not solicit funds
    16. If you use any abbreviation such as Failure To Register (FTR), or any others, the first time you use it please expand it for new people to better understand.
    17. All commenters are required to provide a real email address where we can contact them.  It will not be displayed on the site.
    18. Please send any input regarding moderation or other website issues via email to moderator [at] all4consolaws [dot] org
ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  
Notify of
Inline Feedbacks
View all comments

“The “decision joins appellate courts from other states around the country holding that because sex-offender registration is punitive, it must comply with the protections of the U.S. Constitution,” Johnson wrote in a news release.”
Why does that statement sound so good to me. I could read that over and over again :->

Don’t get too excited. While “registration is punitive” is asserted in an unqualified way a couple of times in the article, it is clear from the context that they mean “for juvenile offenders”. How it can be different for non-juvenile offenders, I can’t imagine.

The article also states that courts have found registration to be punitive. Without further qualification, that is misleading also. In the juvenile context, yes. Certain regulatory schemes, when considered in total with all other restrictions, yes. Retroactive application in certain states, yes. But not simple registration generally. For any court to say that the bare fact of registration is punitive would be contrary to what SCOTUS said in Smith v Doe.

I’d love to hear the argument to justify how something is punitive for the juvenile, but non-punitive for the adult. I get that something can be cruel and unusual for a juvenile versus an adult (i.e. the seriousness of the punishment), but how can the exact same State-imposed action shift from punitive to non-punitive? It seems to happen; I just don’t get how it’s arguable. I guess if we take away a kid’s DL, it’s punishment, but if we do it to an adult it’s not?

“…it reflects a national sea-change in how courts are coming to terms with the reality that the sex offender registry is punishment…”
Bingo. I bet a random poll of people on the street would yield almost universal agreement and understanding that it’s punishment. But what do the people know? Law knows better…

I believe the general public has always recognized that being placed on a sex offender registry is punishment, and believe that lifetime registration, presence restrictions, and residency restrictions impart far less retribution to us than what most of them think we actually deserve, which is a bullet.

I also believe that the average person has no clue that “sex offender registration” isn’t part of our sentence, nor do they know what ex post facto punishment is, nor would they object to it where it concerns us, even if they did understand it.

The idea that “sex offender registration” is nothing more than a civil regulatory measure was a legal fiction that SCOTUS validated in Smith v Doe. Why? Because they knew that the prevailing social will was to inflict this punishment on us, and there needed to be a legal loophole to allow it.

Correct. They average societal simpleton feels and believes that we should be “glad” we’re still able and allowed to draw air.

Politicians have stolen more with a smile than anyone in history has stolen with a gun.

I am not sure how Smith v Doe stands anywhere.

The very test used in Smith V Doe using the Mendoza-Martinez factors now shows pure punitive. In Smith they said registration had no effect on getting a job or living/traveling where you want and could be updated online. Now it even quashes free speech and freedom to associate with others by causing you to be banned from Facebook and Nextdoor when the government gives them all of your online identifiers.

It stands because the animus towards “sex offenders” is so great, so blinded by pure rage, that they will perform whatever rationalization process is necessary to stay in their rage. But, even if they don’t feel that rage directly, the courts know that the public does feel it and so they will dispassionately accommodate the public’s demands while ensuring the necessary appearance of judicial probity and reasonableness.

@Chris f:
“I am not sure how Smith v Doe stands anywhere.”
It stands because it’s the default and cookie-cutter response. Only if/when a case is differentiated from Smith does it fall short. That sort of analysis is what has given us the wins we have in the 6th, in PA, etc. Were the States and Feds to fall back to a purely Smith scheme, there would be no room for suit. Their endless desire to pile on more and more burdens only helps us in the long run.


Right, so essentially, Smith can never be overturned because conditions similar to Smith no longer exist.

So even if we finally get something to SCOTUS that they accept regarding the current scheme (due to a circuit split where some districts say its ok and some say its not), it wont overturn Smith. That means they can water the registry down a bit to be more Smith like, and start this all over again.

We really need a big win on something like Substantive Due Process or Seperation of Powers to make Smith not relevant…or even overturn Connecticut DPS v doe but that is highly unlikely given it being unanimous.

@Chris f: “… so essentially, Smith can never be overturned because conditions similar to Smith no longer exist.”

Not necessarily so. They could, in some future case, hold that Smith v Doe was “wrong when it was decided”, like Kennedy said about Bowers v Hardwick in Lawrence v Texas 2009.

The judgement in Smith was based on totally unfounded fictitious assertions and fake data that “sex offender recidivism” was “frightening and high”. Also, the analysis of the effects of even simple registration in Smith v Doe greatly understated the impacts as they exist now, in the modern internet age of global personal data collection and dissemination and social reliance on it. History has shown and continues to show that the effects are far more significant than what SCOTUS claimed in 2003. And as you have pointed out elsewhere, recent opinions of lower courts using the same Mendoza-Martinez framework are finding registration schemes to be punitive.

I think there’s hope for Smith to be overturned in the future, or at least limited or modified in some ways. But I don’t think it will happen soon.

Oops, sorry. It’s a relatively unimportant correction to the above, but what I meant was Lawrence v Texas 2003, not 2009. And Bowers v Hardwick was 1986. It was 17 years before it was overturned.

I think it’s interesting that Kennedy authored the opinion in Lawrence and in Smith, both in 2003. It’s amazing that he got it so right in Lawrence, and so wrong in Smith.

@Chris f:
I agree with @CR’s post across the board. I think perhaps one of these days the privacy angle will have some traction, but no time soon. I have a hard time seeing Smith overturned within the next 15-20 years. I do think that if Government is forced back and Smith is made to be the ceiling, rather than an acceptable floor, the registry will wither away to nothing through lack of interest. IMO, if there were no broadcast apparatus (whether N3xtd00r, community notifications, or what have you), even LE would get tired of it and the general public would research it even less than it does now. The background check data would still suck, but the registry would otherwise be ignored by the sheeple.

“I think it’s interesting that Kennedy authored the opinion in Lawrence and in Smith, both in 2003. It’s amazing that he got it so right in Lawrence, and so wrong in Smith.”
Kennedy also wrote the Opinions for Obergefell v. Hodges and McKune v. Lile, so those outcomes don’t surprise me in the least.

Kennedy was a social moderate, but a law-enforcement conservative.

Would love your thoughts, please comment.x