CO: Supreme Court’s decision on sex offense registry leaves some eyeing a broader constitutional challenge

Although the Colorado Supreme Court insisted its ruling applied narrowly, advocates for defendants believe the justices have laid a foundation for challenging the constitutionality of the state’s sex offense registration laws more broadly.

On Monday, the Court decided by 6-1 that it violates the Eighth Amendment’s prohibition on cruel and unusual punishment for Colorado to require repeat juveniles convicted of a sex offense to register for life on the sex offense registry without possibility of removal. Justice Monica M. Márquez, writing for the majority, found one overriding principle that guided the determination.

“[A] wealth of social science and jurisprudence confirms what common sense suggests: Juveniles are different,” she noted.

The decision was significant, given that federal and state courts in Colorado have repeatedly affirmed that sex offense registration is not punishment, and therefore cannot be cruel and unusual. At the same time, the detailed nature of the majority and dissenting opinions — 72 pages in total — was somewhat ironic given that

last week, Gov. Jared Polis signed legislation enabling juveniles who were not convicted of subsequent sex offenses as adults to be able to discontinue their registration.

Within the majority’s rationale for striking down the mandatory lifetime registration for children, however, some saw hope for challenging the constitutionality of similar requirements for other populations.

“I would not be at all surprised if, at some point in the relatively near future, someone argues that adult lifetime sex offense registry is punishment etc., and cites this opinion’s reasoning in support,” said Ian P. Farrell, a constitutional and criminal law professor at the University of Denver.

In the case at hand, an adult identified as T.B. committed two sexual offenses as a child, one at 11 years of age and the second at 15. Beginning in 2010, T.B. attempted to discontinue his sex offense registration, with his probation officer testifying that he did a “phenomenal job” in treatment, had completely changed from who he was as a juvenile, and encountered barriers finding a better job or an apartment because of his status as a registered “sex offender”.

The Court’s majority noted that the General Assembly did not intend for Colorado’s registry to be a form of punishment, but instead to aid law enforcement and allow the public to “adequately protect themselves and their children” from people who committed sex crimes. Yet, the consequences of being on a registry did, in fact, resemble punishment: retribution, deterrence, public shaming and — for juveniles subject to lifetime registration — an ordeal disproportionate to the goal of merely protecting the community.

“In an era of social media, these realities are especially striking for juveniles convicted of a sex offense who are branded with the label of “sex offender” before their adult lives have even begun,” Márquez wrote.

Turning to the question of whether the punishment was cruel and unusual, Márquez leaned heavily on prior court decisions and scientific literature showing a low likelihood of children reoffending after the first few years, and inherently less culpability due to their developing brains.

“Juveniles frequently exhibit an underdeveloped sense of responsibility, a greater susceptibility to outside pressures, and more transitory personality traits, all of which suggest that, over time, ‘a greater possibility exists that a minor’s character deficiencies will be reformed,'” she explained, quoting from a U.S. Supreme Court case on the subject of juvenile punishment.

The justices issued their ruling even though the new law prohibiting mandatory lifetime registration for juveniles takes effect on September 1. Gail K. Johnson, the attorney for T.B., said the Court did so because the injury to her client was ongoing.

“No one wants to be on a sex offense registry. It affects all aspects of one’s life,” she said. It affects the ability to get housing. It affects the ability to get a job. It affects the ability to find a romantic partner. It affects how one feels about oneself. It is far- reaching.”

A registrant must provide their name, including aliases, date of birth, address, place of employment, vehicle information, locations where the person works or attends classes, and re-register at least annually.

Márquez made it clear that the Court was not speaking to the

constitutionality of lifetime registration for adults, nor was it casting judgment on the practice of registering children in the first place.

However, Johnson and other attorneys believed the Court’s majority had presented a decent argument for striking down mandatory lifetime registration for other groups of people, if not for everyone.

“I believe this opinion opens up an attack for the 18-26 age group, that young adults whose brain has not fully developed can be rehabilitated and thus lifetime registration for this class violates the Eighth Amendment,” said Denver criminal defense attorney Christopher Braddock.

One passage in particular appeared to support the notion that the effects of mandatory lifetime registration amount to punishment universally.

“In sum,” Márquez wrote, “mandatory lifetime sex offense registration for juveniles imposes affirmative disabilities and restraints; resembles traditional shame-based punishments; promotes deterrence and retribution; applies only to criminal offenses; and does not bear a rational relationship to — and is excessive in light of — its nonpunitive purposes.”

Sandy Rozek of the National Association for Rational Sexual Offense Laws said, in reviewing the Court’s opinion, that the “reasons given for juveniles regarding lifetime registration apply to adults also. The registry, whether applied to juveniles or adults, creates conditions which inhibit successful rehabilitation and is therefore against the best interest of society.”

The U.S. Supreme Court in 2003 first decided in Smith v. Doe that sex offense registries were not punishment, when it held that

Alaska’s sex offense registration protocol was constitutional. Other courts have generally abided by that ruling, with the Denver- based U.S. Court of Appeals for the 10th Circuit issuing two decisions last year reiterating that mandatory lifetime registration was not cruel and unusual punishment.

Although those subject to registration described the harassment and shunning they received by nature of appearing on the registry, the 10th Circuit dismissed such treatment as a “collateral consequence” of the law, and not an additional punishment beyond their criminal sentence.

“Courts have employed impressive logical gymnastics to avoid calling these laws punishments or to say they don’t count as punitive under the relevant constitutional clauses,” said Michael F. Caldwell, a lecturer in psychology at the University of Wisconsin- Madison who has written about juvenile sex offense recidivism.

Chief Justice Brian D. Boatright, the lone dissenter in the T.B. case, insisted that Colorado follow the U.S. Supreme Court’s precedent of declining to label registration as punishment. He added that age alone was not a factor that turns a consequence into punishment.

“I realize that there are challenges associated with sex offense registration. I will even go so far as to say that lifetime sex offense registration for juveniles, without the possibility of deregistration, is unfair,” he wrote. “But something being unfair does not mean it is unconstitutional.”

In recent years, cracks in the consensus have begun to form, as the T.B. case illustrated. Márquez pointed to a string of decisions from the U.S. Supreme Court treating children differently from

adults in criminal sentencing, such as the 2012 prohibition on life sentences without the possibility of parole. And earlier this month, the South Carolina Supreme Court struck down the state’s lifetime sex offense registration requirement, which afforded very little opportunity for removal from the registry.

In addition, requirements for sex offense registration and community notification have expanded since the

2003 Smith decision, to the point where one federal court described Michigan’s registration regime as “a byzantine code governing in minute detail the lives of the state’s sex offenders.”

Past court decisions have generally allowed changes in registration laws to apply retroactively, said Laurie Rose Kepros, the director of sexual litigation at Colorado’s Office of the State Public Defender, despite the U.S. Constitution’s Ex Post Facto Clause prohibiting the imposition of punishments more severe than they were at the time the crime was committed. Although

the T.B. decision is the first time the Colorado Supreme Court has found any part of the state’s registry unconstitutional, Kepros indicated that hundreds of people are prosecuted every year for failing to register, sometimes for logistical reasons.

“People on the registry are not entitled to court-appointed counsel to help them file petitions to discontinue registration when they become eligible,” she said. As a consequence, some registrants “found the bureaucracy of the process too overwhelming to navigate without legal counsel and often were unable to afford counsel themselves.”

According to a U.S. Department of Justice analysis, measuring recidivism for people who have committed sex crimes is difficult,

and studies attempting to estimate re-offense rates ranged

from 5% within three years of prison release to 24% after 15 years. One study from 2003 concluded that the re-arrest rate for people convicted of a sex offense was lower than for other types of offenses,

and research from 2004 found recidivism rates decreased the longer someone had gone without re-offending.

As of 2020, there were an estimated 20,000 people in Colorado’s registry. The Colorado Bureau of Investigation

reported processing 436 orders discontinuing registration in 2019. To discontinue registration, a court must weigh the risk that a person is likely to commit a subsequent sex crime.

Catherine L. Carpenter, a professor at Southwestern Law School in Los Angeles, believed Colorado’s Supreme Court may someday decide that lifetime registration for adults is punishment, but doubted the Court would find it cruel and unusual. An opponent of mandatory lifetime registration as well as registration for children, Carpenter said registration regimes do not necessarily further public safety.

“Sometimes we have laws in place and we make a big deal about them, a big performance out of them, only because it serves the public’s desire for it,” she said. “Taking off our shoes at the airport is a good example.”

The case is People in the Interest of T.B.

Source: Colorado-6-30-21.pdf