in Interest of T.B

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 20, 2019
2019COA89
No. 16CA1289, People in Interest of T.B. — Criminal Law — Sex
Offender Registration — Juveniles — Petition for Removal from
Registry; Constitutional Law — Eighth Amendment — Cruel
and Unusual Punishments
The Colorado Sex Offender Registration Act (CSORA), sections
16-22-101 to -115, C.R.S. 2018, requires that juveniles who are
twice adjudicated for unlawful sexual behavior must register as sex
offenders for life. In this Eighth Amendment challenge to CSORA, a
division of the court of appeals, with one judge dissenting, holds
that CSORA’s lifetime registration requirement is a punishment as
it applies to juveniles.
Based on this conclusion, the division remands the case to the
juvenile court for further proceedings to take further evidence and
make findings on the issue of whether CSORA’s lifetime registration
requirement for juveniles constitutes cruel and unusual
punishment.
COLORADO COURT OF APPEALS 2019COA89
Court of Appeals No. 16CA1289
City and County of Denver Juvenile Court No. 01JD1407
Honorable D. Brett Woods, Judge
Honorable Karen M. Ashby, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of T.B.,
Juvenile-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WELLING
Harris, J., concurs
Webb, J., dissents
Announced June 20, 2019
Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee
Johnson & Klein, PLLC, Gail K. Johnson, Katherine C. Steefel, Boulder,
Colorado, for Juvenile-Appellant
Elizabeth Logemann, Denver, Colorado, for Amicus Curiae Colorado Juvenile
Defender Center and Children’s Rights
¶1 The Colorado Sex Offender Registration Act (CSORA), sections
16-22-101 to -115, C.R.S. 2018, requires that juveniles who are
twice adjudicated for unlawful sexual behavior must register as sex
offenders for life. T.B. is one of those juveniles. He now appeals the
denial of his petition to deregister, arguing that the statute’s
requirement that he register as a sex offender for life for offenses
that he committed as a juvenile constitutes cruel and unusual
punishment. This court has repeatedly rejected similar claims,
each time on the basis that sex offender registration is not a
punishment. We, however, conclude that the lifetime registration
requirement arising from juvenile adjudications constitutes a
punishment and, therefore, remand the case for further proceedings
to determine whether the punishment is unconstitutional.
I. Background
¶2 In 2001, when T.B. was twelve years old, he was adjudicated
for unlawful sexual contact, a class 1 misdemeanor if committed by
an adult. In 2005, he pleaded guilty to sexual assault. Following
the 2005 adjudication, he successfully completed probation and
offense specific treatment. He has no other criminal record.
1
¶3 In 2010, T.B. filed a pro se petition to discontinue sex offender
registration in both cases. By checking a box on the petition, he
represented that “I have successfully completed the terms and
conditions of my sentence related to that offense. I have not been
subsequently convicted or adjudicated a juvenile delinquent for any
offense involving unlawful sexual behavior.”
¶4 Following an evidentiary hearing, the juvenile court found that
T.B. “has earned the right not to have to register” and “he is not a
risk to sexually reoffend.” Then the court granted the petition as to
the 2005 case but concluded that discontinuing registration was
not permitted in the earlier case because T.B. had a subsequent sex
offense adjudication (i.e., the 2005 case).
¶5 Almost five years later, now twenty-six years old and
represented by counsel, T.B. filed a second petition to discontinue
registration. This time he argued that lifetime registration violated
due process and constituted cruel and unusual punishment.
Again, the juvenile court held a hearing. In a written order relying
primarily on People in Interest of J.O., 2015 COA 119, the court
rejected T.B.’s constitutional arguments and denied the petition.
¶6 T.B. appeals that denial.
2
II. Procedural Bar
¶7 Relying on cases decided under Crim P. 35(c), the People
assert that T.B.’s constitutional arguments are procedurally barred.
We disagree.
A. Successiveness
¶8 Claims that could have been raised in a prior appeal are
usually barred as successive. See Dunlap v. People, 173 P.3d 1054,
1062 (Colo. 2007) (citing Crim. P. 35(c)); People v. Vondra, 240 P.3d
493, 495 (Colo. App. 2010) (“Defendant could have challenged the
district court’s factual findings and its conclusion that counsel was
not ineffective on direct appeal, but chose not to do so.”). But we
reject the Attorney General’s successiveness argument for two
reasons.
¶9 First, the Attorney General’s successiveness argument
assumes that cases decided under Crim. P. 35(c) should control
this case. Unsurprisingly, such cases apply the mandate of Crim.
P. 35(c)(3)(VI)-(VII) (“The court shall deny any claim that was raised
and resolved in a prior appeal” or “could have been presented in an
appeal previously brought.”). But T.B. never sought relief under
3
Crim. P. 35(c). Nor, for that matter, do we see how he could have
taken this approach in pursuit of discontinuing registration.
¶ 10 Second, while it is accurate that the juvenile court twice
denied T.B.’s petition to discontinue the registration requirement
and T.B. did not appeal from the first denial, the Attorney General’s
assertion that “[n]othing legal or factual has changed since the first
ruling” is only partly true. The factual basis for seeking to
discontinue registration was the same in both petitions — T.B. no
longer posed a risk to sexually reoffend. But, as detailed in Part
III.B.1.a below, the legal landscape involving juvenile sentencing in
general and lifetime registration in particular has evolved
substantially since T.B.’s first petition in 2010. See, e.g., Miller v.
Alabama, 567 U.S. 460, 479 (2012) (extending Graham v. Florida,
560 U.S. 48 (2010), and holding “that the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders” convicted of homicide);
Graham, 560 U.S. at 73 (observing that just because a juvenile
defendant “posed an immediate risk” at one point in his young life
does not mean that he will “be a risk to society for the rest of his
life”); State in Interest of C.K., 182 A.3d 917, 932-33 (N.J. 2018)
4
(collecting cases issued since 2012 where state courts of last resort
have held that lifetime registration and notification requirements for
juvenile sex offenders are unconstitutional).
¶ 11 Accordingly, we conclude that there is no successiveness to
T.B.’s petition and this appeal. Cf. People v. Rainer, 2013 COA 51,
¶ 34 (concluding that a juvenile’s postconviction claim was not
successive where it was based on Graham, which “established a
new rule of substantive law which should be applied retroactively”),
rev’d on other grounds, 2017 CO 50.
B. Abuse of Process and the Law of the Case Doctrine
¶ 12 The Attorney General characterizes T.B.’s appeal “as an abuse
of process” because he “did not challenge or appeal the first order
denying his motion.” Of course, abuse of process may be asserted
to prevent perpetual review. Dunlap, 173 P.3d at 1062. But below,
the prosecution did not raise abuse of process. Thus, it is not
available here. See People v. Sherman, 172 P.3d 911, 915 (Colo.
App. 2006) (“In this case, the People did not plead or prove an
abuse of process in the trial court. Hence, this affirmative defense
is not available.”).
5
¶ 13 The law of the case doctrine doesn’t bar our review either.
“Whether the law of the case . . . applies to bar the litigation of an
issue is a question that we review de novo.” Jones v. Samora, 2016
COA 191, ¶ 46. That doctrine applies “to the decisions of an equal
court or a different division of the same court.” Vashone-Caruso v.
Suthers, 29 P.3d 339, 342 (Colo. App. 2001). Thus, the juvenile
court could’ve denied T.B.’s second petition on this basis alone.
But because no other division of this court has addressed T.B.’s
first petition, we are not so limited. Having disposed of the Attorney
General’s procedural arguments, we now turn to the merits.
III. Analysis
¶ 14 T.B. contends that when applied to juveniles, automatic
lifetime registration under CSORA for repeat offenders violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment. But before discussing the constitutional implications
of T.B.’s argument, it is helpful to briefly discuss the relevant
portions of CSORA.
A. Treatment of Juveniles Under CSORA
¶ 15 Juveniles who have been adjudicated for unlawful sexual
behavior must register as sex offenders. § 16-22-103(4), C.R.S.
6
2018 (“The provisions of this article 22 apply to any person who
receives a disposition or is adjudicated a juvenile delinquent based
on the commission of any act that may constitute unlawful sexual
behavior or who receives a deferred adjudication based on
commission of any act that may constitute unlawful sexual
behavior . . . .”). Juvenile sex offenders must adhere to the same
registration requirements as adult sex offenders except that a
juvenile’s sex offender status is not posted on the Colorado Bureau
of Investigation’s website. § 16-22-111(1)(c), C.R.S. 2018 (providing
that the Colorado Bureau of Investigation (CBI) website shall
include information about sex offenders who “[have] been convicted
as an adult” of specific offenses involving unlawful sexual behavior).
¶ 16 The registration requirement lasts for the rest of an
individual’s life or until the court enters an order discontinuing the
registration requirement. See § 16-22-103. Before the court can
enter such an order, an affected individual must file a petition to
discontinue the registration requirement. See § 16-22-113, C.R.S.
2018. In determining whether to grant a petition to discontinue
registration, the juvenile court is guided by a single criterion:
7
whether the person is “likely to commit a subsequent offense of or
involving unlawful sexual behavior.” § 16-22-113(1)(e).
¶ 17 Under CSORA, however, certain individuals are not even
permitted to file a petition to discontinue the registration
requirement. § 16-22-113(3). Included among those who are not
permitted to file a petition are adults who have “more than one
conviction or adjudication for unlawful sexual behavior.” § 16-22-
113(3)(c). This is problematic for T.B. because he is an adult whose
record includes two juvenile adjudications for unlawful sexual
behavior. So, T.B. is not entitled to petition to discontinue his
registration requirement, even though he committed his crimes as a
juvenile, unless the registration requirement, as applied to him, is
unconstitutional. That is where we turn next.
B. Constitutional Challenge
¶ 18 We review constitutional challenges under the Eighth
Amendment de novo. People v. McCulloch, 198 P.3d 1264, 1268
(Colo. App. 2008) (“[A]ppellate scrutiny of an Eighth Amendment
challenge is de novo.”).
¶ 19 The Eighth Amendment prohibits “cruel and unusual
punishments,” U.S. Const. amend. VIII, and “guarantees
8
individuals the right not to be subjected to excessive sanctions,”
Roper v. Simmons, 543 U.S. 551, 560 (2005). This right “‘flows from
the basic “precept of justice that punishment for crime should be
graduated and proportioned”’ to both the offender and the offense.”
Miller, 567 U.S. at 469 (citations omitted).
¶ 20 Analyzing any statute under the Eighth Amendment involves a
two-part inquiry. First, a court must determine whether the statute
imposes a punishment. J.O., ¶ 30. If no punishment is imposed,
we need not venture further because the Eighth Amendment is not
implicated. Id. (If “requiring juvenile sex offenders to register does
not constitute punishment under the Eighth Amendment, [the
court] need not address whether registration is cruel and
unusual.”). 1 If, on the other hand, the statute does impose a
punishment, the court must then decide whether that punishment
is cruel and unusual. Id. So first, we must consider whether
requiring a twice-adjudicated juvenile to register as a sex offender
for life constitutes a punishment. We conclude it does.
1As discussed in more detail in Part III.B below, this is the step at
which the juvenile court terminated its analysis.
9
1. Punishment
¶ 21 To decide whether a statute creates a punishment, a court
must first “ascertain whether the legislature meant the statute to
establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92 (2003)
(quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). This is so
because if the legislature intended to impose punishment, “that
ends the inquiry.” Id.; see also Kennedy v. Mendoza-Martinez, 372
U.S. 144, 169 (1963) (noting that “a detailed examination” of the
statute “is unnecessary” where “the objective manifestations of
congressional purpose indicate conclusively that the provisions in
question can only be interpreted as punitive”).
¶ 22 There is some textual indication in CSORA that the legislature
recognized that the registration requirement may be punitive, at
least as it applies to juveniles. Specifically, among the factors a
juvenile court must consider before exempting a juvenile from
registering as a sex offender at sentencing is whether “the
registration requirement . . . would be unfairly punitive” to the
juvenile. § 16-22-103(5)(a) (emphasis added). This is certainly
some recognition by the General Assembly that requiring a juvenile
to register may be punitive (and in some circumstances, unfairly
10
so). See also Millard v. Rankin, 265 F. Supp. 3d 1211, 1226 n.8 (D.
Colo. 2017) (“The use of ‘unfairly’ suggests that at least some level
of punishment is intended — just not an ‘unfair’ level.”). But still,
on balance, we agree with the courts before us: CSORA’s text does
not explicitly create a punishment. See § 16-22-112(1), C.R.S. 2018
(“[I]t is not the general assembly’s intent that the information [found
on the sex offender registry] be used to inflict retribution or
additional punishment on any person convicted of unlawful sexual
behavior . . . .”).
¶ 23 But this does not end our inquiry. Instead, we must “further
examine whether the statutory scheme is ‘so punitive either in
purpose or effect as to negate’” the legislature’s purportedly
nonpunitive purpose. Smith, 538 U.S. at 92 (quoting Hendricks,
521 U.S. at 361). The Supreme Court cautioned that “only the
clearest proof” will suffice to override that declared intent and
transform a civil remedy into a criminal penalty. Id. (quoting
Hudson v. United States, 522 U.S. 93, 100 (1997)).
11
a. Colorado Case Law and the Evolving Legal Landscape
Regarding Juvenile Sentencing
¶ 24 Although our supreme court has not weighed in on the issue
we are addressing today, we are not writing on a blank slate.
Indeed, we recognize that on multiple occasions, and without
exception, divisions of this court have concluded that CSORA’s
registration requirement is not a punishment. See People in Interest
of C.M.D., 2018 COA 172, ¶ 20; J.O., ¶ 22; People v. Carbajal, 2012
COA 107, ¶ 37; People v. Sowell, 327 P.3d 273, 277 (Colo. App.
2011); People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011);
Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004); People v.
Stead, 66 P.3d 117, 120 (Colo. App. 2002), overruled on other
grounds by Candelaria v. People, 2013 CO 47; People in Interest of
J.T., 13 P.3d 321, 323 (Colo. App. 2000); People v. Montaine, 7 P.3d
1065, 1067 (Colo. App. 1999); Jamison v. People, 988 P.2d 177, 180
(Colo. App. 1999).
¶ 25 Even though “[w]e are not obligated to follow the precedent
established by another division,” we give “such decisions
considerable deference.” People v. Smoots, 2013 COA 152, ¶ 20,
aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15. And we do not
12
take the prospect of departing from this court’s uniform precedent
lightly, nor do we do so without careful consideration. But a
confluence of developments in the law since our court first
concluded that sex offender registration was nonpunitive twenty
years ago persuades us to take a fresh look at the issue,
particularly as it involves lifetime registration for juveniles.
¶ 26 First, the conclusion that CSORA’s sex offender registration
requirement is nonpunitive has come under recent scrutiny. See
Millard, 265 F. Supp. 3d at 1225 (“[A]lthough panels of the Colorado
Court of Appeals have declined to find SORA’s provisions to be
punitive, those cases have not engaged in the ‘intent-effects’
analysis used by the United States Supreme Court, and the
Colorado Supreme Court has not addressed the question.”). 2
2 We recognize that two divisions have in fact analyzed CSORA’s
registration requirement under the “intent-effects” factors set forth
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963). See
People in Interest of C.M.D., 2018 COA 172, ¶¶ 22-23; People v.
Stead, 66 P.3d 117, 121-23 (Colo. App. 2002), overruled on other
grounds by Candelaria v. People, 2013 CO 47. We, however,
respectfully disagree with the conclusions drawn by these divisions.
See People v. Moore, 321 P.3d 510, 513 (Colo. App. 2010) (“One
division of this court is not bound by the decision of another
division.”), aff’d in part and vacated in part on other grounds, 2014
CO 8.
13
Although we are in no way bound by the conclusion in Millard, the
decision highlights that a growing number of states are revisiting
whether sex offender registration requirements are punitive. Id. at
1224 (collecting cases from other jurisdictions where state courts
have concluded that their states’ registration requirements are
punitive).
¶ 27 Second, and more importantly, the legal landscape involving
juvenile sentencing in general has evolved considerably. Consider,
for example, the United States Supreme Court’s evolving
jurisprudence on juvenile sentencing over the last fourteen years.
In Roper, 543 U.S. at 555, 568, the Court concluded that imposing
the death penalty on offenders who were under eighteen at the time
of their capital offenses is unconstitutional. Then in Graham, the
Court held that juveniles convicted of nonhomicide offenses could
not constitutionally be sentenced to life without parole. 560 U.S. at
74. Finally, in Miller, the Court extended Graham, holding “that the
Eighth Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders”
convicted of homicide. 567 U.S. at 479.
14
¶ 28 Likewise, our supreme court has recently addressed juvenile
sentencing in other contexts and adopted these federal standards.
See, e.g., Estrada-Huerta v. People, 2017 CO 52; Lucero v. People,
2017 CO 49; People v. Tate, 2015 CO 42.
¶ 29 Third, the Eighth Amendment jurisprudence on lifetime sex
offender registration for juveniles in particular has also evolved. A
growing number of courts in other states have recently discussed
the constitutionality of requiring a juvenile to register as a sex
offender for life. See, e.g., In re A.C., 54 N.E.3d 952, 968 (Ill. App.
Ct. 2016); In Interest of T.H., 913 N.W.2d 578 (Iowa 2018); C.K., 182
A.3d 917; In re C.P., 967 N.E.2d 729 (Ohio 2012); In re J.B., 107
A.3d 1 (Pa. 2014); Vaughn v. State, 391 P.3d 1086, 1098 (Wyo.
2017). And, unsurprisingly, many of these courts have drawn on
the Supreme Court’s evolving juvenile sentencing jurisprudence,
emphasizing that juvenile offenders have greater prospects for
rehabilitation. See Miller, 567 U.S. at 479 (“[J]uveniles have
diminished culpability and greater prospects for reform . . . .”).
¶ 30 Against this backdrop, it is our respectful assessment that the
issue of whether the punitive effects of CSORA’s lifetime registration
15
requirement for juveniles are sufficient to override its stated
nonpunitive purpose warrants examination through fresh lenses.
b. Applying the Mendoza-Martinez Factors
¶ 31 To determine if a statute’s punitive effect overrides its declared
civil intent, courts must consider the following: (1) whether the
sanction involves an affirmative disability or restraint; (2) whether it
has historically been regarded as a punishment; (3) whether the
court imposes the sanction only upon a particular finding of
scienter; (4) whether its operation will promote the traditional aims
of punishment; (5) whether the behavior to which it applies is a
crime; (6) whether there is a rational connection to a nonpunitive
purpose; (7) whether it appears excessive in relation to the
nonpunitive purpose. C.M.D., ¶ 22 (citing Mendoza-Martinez, 372
U.S. at 168-69).
¶ 32 When applied to juveniles, some of the factors support the
conclusion that CSORA’s lifetime registration requirement is not a
punishment. First, the registration requirement involves no
affirmative disability or restraint, at least not directly. See id. at
¶ 23 (“Unlike prison, probation, or parole, registration does not limit
where offenders may live or where they may work, although local
16
ordinances may do so.”). Second, there is no finding of scienter
that is required before a juvenile is required to register under
CSORA. Instead, juveniles are required to register unless the
juvenile court determines “that the registration requirement . . .
would be unfairly punitive and that exempting the person from the
registration requirement would not pose a significant risk to the
community.” § 16-22-103(5)(a). This standard, however, does not
require that the juvenile court evaluate a juvenile’s state of mind
before imposing the registration requirement. But we agree with
the courts that have concluded that the scienter factor is of little
value when determining whether a sex offender registration
requirement is a punishment. See Smith, 538 U.S. at 105 (scienter
factor is “of little weight in this case”); T.H., 913 N.W.2d at 592
(“[T]he lack of a scienter requirement weighs in favor, albeit
marginally, of finding the statute nonpunitive.”); State v. Eighth
Judicial Dist. Court, 306 P.3d 369, 387 (Nev. 2013) (same).
¶ 33 The remaining factors, however, support the conclusion that
requiring automatic lifetime sex offender registration for juvenile
offenses is a punishment.
17
¶ 34 First, the effect of requiring a juvenile to register as a sex
offender for life is reminiscent of traditional forms of punishment.
The dissemination of information that is then used to humiliate and
ostracize offenders can resemble forms of punishment that
historically have been used to ensure that offenders cannot live a
normal life. Smith, 538 U.S. at 109 (Souter, J., concurring in the
judgment). And when applied to juveniles, the dissemination of
information becomes even more characteristic of a punishment
because the information about a juvenile’s criminal history would
not otherwise be publicly available. See § 19-1-304(1), C.R.S. 2018
(setting forth limitations on public access to juvenile records); see
also Chief Justice Directive 05-01, Directive Concerning Access to
Court Records § 4.60(b)(4) (amended Oct. 18, 2016) (providing that
juvenile delinquency records are presumptively non-public).
¶ 35 It is true that the Supreme Court concluded that the
dissemination of accurate information about an individual’s
criminal record is not a traditional form of punishment. Smith, 538
U.S. at 98. But in that case the Court was addressing the
consequences that befall adult sex offenders. Id. And, unlike
18
records of juvenile adjudications, records of adult convictions are
presumptively public.
¶ 36 It is also true that T.B.’s status as a sex offender is not
available on the sex offender registry that the Colorado Bureau of
Investigation is required to make available on the internet. See
§ 16-22-111(1)(c). But that doesn’t change the fact that anyone
who inquires into T.B.’s background is given access to information
that he or she would not otherwise be able to have.3 Moreover, any
member of the public may request and obtain from his or her local
law enforcement agency a list of sex offenders, which would include
juvenile offenders such as T.B. See § 16-22-112(2). And at the
hearing on his petition to deregister, T.B.’s parole officer testified
that information about T.B.’s status as a sex offender could still
show up in a background check and be the basis for T.B. losing an
apartment or being fired from his job. These public opprobrium
3In his reply in support of his petition, T.B. asserts, with
supporting documents, that “a simple [G]oogle search of [T.B.’s]
name reveals two private websites that have his home address,
details of his adjudication, his age and date of birth, his physical
description, and one site includes his picture.”
19
consequences are often the sort of consequences associated with
more traditional forms of punishment.
¶ 37 Further, as the Supreme Court has recognized, juveniles are
different from adults for the purposes of the Eighth Amendment.
See Miller, 567 U.S. at 471 (“Because juveniles have diminished
culpability and greater prospects for reform, we explained, ‘they are
less deserving of the most severe punishments.’” (quoting Graham,
560 U.S. at 68)). This differentiation is particularly acute when
considering the consequences that juveniles face when they are
required to register as sex offenders. As Ohio’s supreme court
stated:
With no other offense is the juvenile’s
wrongdoing announced to the world. Before a
juvenile can even begin his adult life, before he
has a chance to live on his own, the world will
know of his offense. He will never have a
chance to establish a good character in the
community. He will be hampered in his
education, in his relationships, and in his
work life. His potential will be squelched
before it has a chance to show itself.
C.P., 967 N.E.2d at 741. CSORA imposes similar burdens on T.B.
for offenses that he committed when he was a child; and these
consequences resemble traditional forms of punishment.
20
¶ 38 Second, CSORA’s lifetime registration requirement promotes
the traditional aims of punishment — “retribution and deterrence.”
Mendoza-Martinez, 372 U.S. at 168. A statute begins to look more
retributive, and therefore punitive, when it imposes a sanction for
past conduct and when it does not provide a mechanism by which
an offender can “reduce or end registration based upon a showing
that the offender is no longer a threat to the community.” Starkey
v. Okla. Dep’t of Corr., 305 P.3d 1004, 1028 (Okla. 2013); cf. J.O.,
¶ 29 (stating that among the distinctions that rendered the
Colorado’s juvenile sex offender requirement nonpunitive was that
the juvenile in the case could “petition to discontinue registration
after successfully completing and being discharged from his
juvenile sentence or disposition”). CSORA does both with respect to
twice-adjudicated juveniles like T.B. T.B. was compelled to register
solely because of his past conduct and is still required to register
even though the juvenile court made an express finding that he is
no longer a danger to the community and is not likely to reoffend.
Moreover, as the federal district court in Millard recognized, the
Colorado Bureau of Investigation’s own website states that one of
the goals of the sex offender registry is deterrence; and deterrence is
21
a traditional goal of punishment. See Millard, 265 F. Supp. 3d at
1229 (“The CBI website also states that the registry’s goals are
‘Citizen/Public Safety; Deterrence of sex offenders for committing
similar crimes; and Investigative tool for law enforcement.’” (quoting
Colorado Bureau of Investigation, Registration,
https://perma.cc/HD4C-PYR4)).
¶ 39 Third, for juveniles, the behavior to which CSORA applies is
already a crime.4 For juveniles, CSORA’s lifetime registration
requirement sweeps in only those who have been adjudicated for
committing past crimes — and, once the requirement to register for
life is imposed, it does so without regard to whether he or she is
likely to reoffend. And “[t]he fact that a statute applies only to
behavior that is already, and exclusively, criminal supports a
conclusion that its effects are punitive.” Doe v. State, 189 P.3d 999,
1014 (Alaska 2008).
4 For adults, CSORA’s registration requirement extends beyond just
those who have been convicted of sex offenses, and also reaches
individuals who have been found not guilty by reason of insanity of
certain sex offenses and are later released, see § 16-8-115(4), C.R.S.
2018; see also People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011)
(applying CSORA’s registration requirement to an adult who was
found not guilty by reason of insanity of sexual assault).
22
¶ 40 The final two factors — whether there is a rational connection
between the sanction and its stated nonpunitive purpose and
whether the statute is excessive given that purpose — must be
considered together. It cannot be disputed that there is a rational
connection between CSORA’s registration requirement and public
safety. § 16-22-112(1). But we also must consider whether
CSORA’s lifetime registration requirement for juveniles is excessive
given the important public safety justifications at issue. Smith, 538
U.S. at 97.
¶ 41 The question in this regard is not whether the legislature has
chosen the best path to address its nonpunitive objective, but
rather whether “the regulatory means chosen are reasonable in
light of the nonpunitive objective.” Id. at 105. Other courts have
placed the greatest weight on this factor. See T.H., 913 N.W.2d at
594 (“The final Mendoza-Martinez factor is the most significant of
the seven . . . .”); see also Wallace v. State, 905 N.E.2d 371, 383
(Ind. 2009) (collecting cases stating the same). We agree with the
courts that have viewed this as a weighty factor.
¶ 42 Indeed, a growing number of states have concluded that
lifetime registration requirements similar to CSORA’s are excessive
23
as applied to juveniles considering their nonpunitive purpose. See
Wallace, 905 N.E.2d at 384 (The statute is excessive in relation to
its public safety purpose because it “makes information on all sex
offenders available to the general public without restriction and
without regard to whether the individual poses any particular
future risk.”); T.H., 913 N.W.2d at 596 (“[M]andatory [lifetime]
registration for juveniles is excessive in light of its nonpunitive
purpose.”); Commonwealth v. Baker, 295 S.W.3d 437, 446 (Ky.
2009) (“Given . . . the fact that there is no individual determination
of the threat a particular registrant poses to public safety, we can
only conclude that [the statute requiring lifetime registration] is
excessive with respect to the nonpunitive purpose of public
safety.”); C.P., 967 N.E.2d at 742 (requiring lifetime sex offender
registration for juveniles is excessive because it is not dependent on
what is actually necessary to preserve public safety).
¶ 43 In contrast, other states have concluded that a sex offender
registration statute is not excessive in relation to its nonpunitive
purpose when it provides an individualized assessment of the risk
that a juvenile will reoffend. See In re Nick H., 123 A.3d 229, 247
(Md. Ct. Spec. App. 2015) (holding that a statute is not excessive
24
because it requires that the court make an individualized finding
that registration is appropriate for the juvenile and the period is
only for up to five years); Eighth Judicial Dist. Court, 306 P.3d at
387 (holding that a statute is not excessive because it limits sex
offender registration for juveniles to only those crimes that pose the
highest risk of reoffending); In re Justin B., 747 S.E.2d 774, 783
(S.C. 2013) (holding that a statute is not excessive when a juvenile
may petition to deregister after ten years); Vaughn, 391 P.3d at
1100 (holding that a statute is not excessive in relation to public
safety purpose because an offender can apply for removal after ten
years). Because CSORA prohibits T.B. from filing a petition to
deregister, he is precluded from getting an individualized
assessment related to whether registration is still necessary for the
protection of the community.
¶ 44 We conclude that requiring a juvenile, even one who has been
twice adjudicated for offenses involving unlawful sexual behavior, to
register as a sex offender for life without regard for whether he or
she poses a risk to public safety is an overly inclusive — and
therefore excessive — means of protecting public safety. That
overinclusiveness is exemplified in this case. The juvenile court
25
specifically found that T.B. “successfully addressed all issues
related to his sexual offending behavior” and that he was “not likely
to reoffend.” But even in light of these findings, CSORA left the
juvenile court powerless to consider — let alone grant — T.B.’s
petition to deregister.
¶ 45 Under CSORA, there is simply no connection between the
lifetime registration requirement for juveniles and the likelihood
that the registrant will reoffend; the only criterion for lifetime
registration is a finding that the juvenile has been twice adjudicated
for unlawful sexual behavior. See generally § 16-22-103. In other
words, 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. Thus, we conclude that because
CSORA’s lifetime registration requirement is not adequately
tethered to the statute’s stated nonpunitive purpose, the automatic
lifetime registration requirement for juvenile offenders is excessive.
And because CSORA’s lifetime registration requirement is excessive
in relation to its nonpunitive purpose when applied to juveniles, we
conclude that it operates more like a punishment.
26
¶ 46 In short, the weightiest Mendoza-Martinez factors, including
ones most pertinent to our determination, demonstrate that the
punitive effects of CSORA’s lifetime registration requirement as
applied to juveniles override its stated nonpunitive purpose. As a
result, we decline to adopt the conclusions of prior divisions of this
court. See People v. Washington, 2014 COA 41, ¶ 27 (“To the extent
that several divisions of this court have departed from Strickland’s
above-noted statements regarding the applicable burden of proof,
we are not obligated to follow those divisions.”) (citations omitted);
People in Interest of S.N-V., 300 P.3d 911, 914 (Colo. App. 2011) (a
division of the court of appeals is not bound by other divisions).
Instead, we conclude that CSORA’s lifetime registration requirement
for juveniles is a punishment within the meaning of the Eighth
Amendment.
¶ 47 But this still does not end the inquiry. Unlike prior divisions,
because we have concluded that CSORA’s lifetime registration
requirement for juveniles constitutes a punishment, we must now
consider whether the punishment is cruel and unusual.
27
2. Is the Punishment Cruel and Unusual?
¶ 48 “Embodied in the Constitution’s ban on cruel and unusual
punishments is the ‘precept of justice that punishment for crime
should be graduated and proportioned to [the] offense.’” Graham,
560 U.S. at 59 (quoting Weems v. United States, 217 U.S. 349, 367
(1910)). The juvenile court never reached the issue of whether the
lifetime registration requirement is cruel and unusual on its face or
as applied to T.B. This is entirely understandable given this court’s
previously unbroken line of cases concluding that the registration
requirement was not a punishment. See, e.g., J.O., ¶ 30 (declining
to address whether a punishment is cruel and unusual because
division concluded that registration requirement is not a
punishment); see also Patterson v. James, 2018 COA 173, ¶ 40
(Published opinions of the court of appeals “are binding precedent
for ‘all lower court judges.’” (quoting C.A.R. 35(e))).
¶ 49 Whether a particular punishment is cruel and unusual is a
fact-intensive inquiry. See Millard, 265 F. Supp. 3d at 1231
(analyzing whether registration is cruel and unusual punishment by
examining the specific effects that registration has on each
offender); cf. Anderson v. Colo., Dep’t of Corr., 848 F. Supp. 2d 1291,
28
1296 (D. Colo. 2012) (denying motion for summary judgment
because there were material facts in dispute as to whether
restricting access to exercise is a cruel and unusual punishment).
As such, it is best addressed by the trial court in the first instance.
¶ 50 At the hearing on his petition, T.B. submitted some evidence
relevant to whether the lifetime registration requirement constituted
a cruel and unusual punishment. For example, T.B.’s parole officer
testified about some of the hardships that he faces as a registrant.
T.B. also put in the record numerous scholarly articles discussing
whether the registration requirement is cruel and unusual as
applied to juveniles. See, e.g., Amy E. Halbrook, Juvenile Pariahs,
65 Hastings L.J. l (2013); Human Rights Watch, Raised on the
Registry: The Irreparable Harm of Placing Children on Sex Offender
Registries in the US (May 2013), https://perma.cc/B3E9-AT5S.
¶ 51 Unsurprisingly, the People didn’t rebut this evidence, as they
were — quite understandably — relying on the contention that the
juvenile court was bound to follow this court’s decisions concluding
that CSORA’s lifetime registration requirement was not a
punishment. And, because it concluded that the lifetime
registration requirement for juveniles was not a penalty, the
29
juvenile court didn’t make any findings about whether it’s cruel and
unusual. See, e.g., J.O., ¶ 30 (“[H]aving concluded that requiring
juvenile sex offenders to register does not constitute punishment
under the Eighth Amendment, we need not address whether
registration is cruel and unusual.”).
¶ 52 But neither of the parties nor the juvenile court had the
guidance of this opinion during any of the prior proceedings, and,
as a result, they had no notice that evidence and findings related to
whether the punishment was cruel and unusual would be required
to resolve this case and rule on T.B.’s petition to deregister. Thus,
on remand, both T.B. and the People must be afforded an
opportunity to present additional evidence on the issue of whether
CSORA’s lifetime registration requirement for juveniles constitutes
cruel and unusual punishment. See In re Marriage of Fabos, 2019
COA 80, ¶ 57 (“[B]ecause the court and the parties did not have the
guidance of [the supreme court’s opinion] during the earlier
hearing, both parties should be afforded the opportunity to present
the district court with additional evidence and argument if either
party wishes to do so.”). Accordingly, we remand the case to the
juvenile court to take further evidence and make findings on the
30
issue of whether CSORA’s lifetime registration requirement for
juveniles — either facially or as applied to T.B. — constitutes cruel
and unusual punishment in violation of the Eighth Amendment.
C. Irrebuttable Presumption
¶ 53 T.B. also argues that CSORA creates an impermissible
irrebuttable presumption that a previous offender will offend again
and, therefore, remains a danger to the community forever.
Statutes that create irrebuttable presumptions are disfavored. See
Vlandis v. Kline, 412 U.S. 441, 446 (1973); People in Interest of
S.P.B., 651 P.2d 1213, 1217 (Colo. 1982). The irrebuttable
presumption doctrine springs from substantive due process, so we
apply the rational basis test to determine the constitutionality of a
statute unless the statute infringes upon a fundamental
constitutional interest. People v. Young, 859 P.2d 814, 818 (Colo.
1993) (“[W]hen no fundamental right is implicated, the legislation is
subject to evaluation for substantive due process purposes
pursuant to the rational basis test . . . .”). In his briefing to this
court, however, T.B. does not articulate what fundamental
constitutional interest the registration requirement infringes on.
Because of this and because we are reversing the trial court’s order
31
based on our conclusion that CSORA’s lifetime registration
requirement constitutes a punishment, we decline to address T.B.’s
argument that the automatic registration requirement imposes an
unconstitutional irrebuttable presumption.
IV. Conclusion
¶ 54 The juvenile court’s order denying T.B.’s petition to
discontinue the requirement that he register as a sex offender is
reversed, and the case is remanded to the juvenile court for further
proceedings consistent with this opinion.
JUDGE HARRIS concurs.
JUDGE WEBB dissents.
32
JUDGE WEBB, dissenting.
¶ 55 Every division of this court to have considered Eighth
Amendment challenges to the mandatory lifetime registration
requirement in the Colorado Sex Offender Registration Act (CSORA)
has held that because this requirement does not constitute
punishment — cruel and unusual or otherwise — it is
constitutional. This case tests the principle that one division of this
court should give considerable deference to decisions of other
divisions.
¶ 56 But because a court has determined that despite T.B.’s two
prior sex offenses, he poses a low risk of sexually reoffending,1 does
this requirement still survive Eighth Amendment scrutiny? True, a
similar determination did not face any of those prior divisions.
Even so, nonpunitive purposes of CSORA other than safeguarding
against recidivism, as recognized by prior divisions, show that the
registration requirement is not an excessive sanction — and thus
1
During the hearing, the trial court said T.B. “is not a risk to
sexually reoffend.” Then in its order, the trial court said T.B. “is
unlikely to reoffend.” See Reed v. Indus. Claim Appeals Office, 13
P.3d 810, 813 (Colo. App. 2000) (“[I]f there is a conflict between oral
and written findings, it is the written order that controls.”).
33
punishment — under the Eighth Amendment. And because
relatively recent United States Supreme Court cases imposing
constitutional limitations on juvenile sentencing deal with palpable
punishments — the death penalty and life without possibility of
parole — those cases provide little guidance in answering the
preliminary question whether mandatory registration is punishment
at all. So, I discern insufficient reason to disavow our unanimous
precedent. Reaching an issue not addressed by the majority, I
further conclude that the requirement does not violate due process,
either on its face or as applied to T.B.
¶ 57 Both the majority’s heavy reliance on out-of-state authority
and T.B.’s contrary policy arguments are better addressed by the
General Assembly or our supreme court. Therefore, and with
respect, I dissent.
I. This Appeal Is Not Procedurally Barred
¶ 58 I agree with the majority that T.B.’s constitutional arguments
are not procedurally barred and note that the Attorney General does
not dispute preservation.
34
II. The Eighth Amendment Does Not Afford T.B. Relief
A. Background
¶ 59 The majority correctly concludes that constitutional challenges
under the Eighth Amendment are reviewed de novo. People v.
McCulloch, 198 P.3d 1264, 1268 (Colo. App. 2008) (“[A]ppellate
scrutiny of an Eighth Amendment challenge is de novo.”). The
majority’s overview of general Eighth Amendment jurisprudence,
summary of the relevant Colorado statutes, and explanation of how
those statutes apply to T.B. are accurate and lead to the
inescapable conclusion that T.B. is entitled to petition to
discontinue his registration requirement if — and only if — the
registration requirement, as applied to him, is cruel and unusual
punishment.
¶ 60 Thus, the threshold question is whether this requirement
constitutes punishment. In my view, it never did, and still does
not.
B. Court of Appeals Precedent
¶ 61 Citing ten published cases, the majority acknowledges that
“without exception, divisions of this court have concluded that
CSORA’s registration requirement is not a punishment.” Supra
35
¶ 24. The majority does not cite contrary precedent from either our
supreme court or the United States Supreme Court. Nor have I
found any.
¶ 62 Everyone agrees that one division of this court gives decisions
of other divisions “considerable deference.” People v. Smoots, 2013
COA 152, ¶ 20, aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15;
see also Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 143
(Berger, J., concurring in part and dissenting in part) (“[W]e should
not easily cast aside a considered decision by a prior division of this
court.”). 2 Because I adhere to the unanimous holdings of other
divisions, the majority’s string citation warrants a closer look.
2
The destabilizing effect on trial courts and litigants of creating a
conflict among published decisions of this court also favors
consistency. See Greyhound Lines, Inc. v. County of Santa Clara,
231 Cal. Rptr. 702, 704 (Cal. Ct. App. 1986) (“We acknowledge we
are not bound by an opinion of another District Court of Appeal,
however persuasive it might be. We respect stare decisis, however,
which serves the important goals of stability in the law and
predictability of decision.”) (citation omitted). Under C.A.R. 35(e),
“[o]pinions designated for official publication must be followed as
precedent by all lower court judges in the state of Colorado.” But if
conflicting published opinions exist, should a trial judge go with the
majority of divisions, take the most recent pronouncement, or
decide what is the better rule? Of course, litigants can argue for
any of these options. And whatever choice the trial judge makes,
the loser is compelled to appeal as a means of preserving the
question until our supreme court speaks.
36
¶ 63 In People in Interest of J.O., 2015 COA 119, ¶ 30, the division
held that “sex offender registration under section 16-22-103[,
C.R.S. 2018] — even as applied to juveniles — does not constitute
punishment.” The division relied on the following court of appeals
cases that have reached this conclusion.
• Jamison v. People, 988 P.2d 177, 180 (Colo. App. 1999) (“[T]he
General Assembly did not intend the registration requirement
to inflict additional punishment on a person convicted of a
sexual offense. Rather, such registration is required in order
to aid law enforcement officials in investigating future sex
crimes and to protect the public safety.”).
• People in Interest of J.T., 13 P.3d 321, 323 (Colo. App. 2000)
(“The statutory duty to register as a sex offender is not a
criminal punishment.”).
• People v. Stead, 66 P.3d 117, 120 (Colo. App. 2002) (“[T]he sex
offender registration statute does not disadvantage those
offenders subject to its provisions; thus, registration is not
punishment . . . .”) (citation omitted), overruled on other
grounds by Candelaria v. People, 2013 CO 47.
37
• People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011) (“The
statutory scheme[ for sex offender registration] . . . indicates
that registration is not punitive, but rather aids law
enforcement in investigating future crimes and promotes
public safety.”).
• People v. Sowell, 327 P.3d 273, 277 (Colo. App. 2011) (“Laws
imposing registration requirements on sex offenders [are] . . .
not punishment . . . .”).
• People v. Carbajal, 2012 COA 107, ¶ 37 (“Sex offender
registration is not an element of a defendant’s sentence, and
the purpose of registration is not to punish the defendant, but
to protect the community and to aid law enforcement officials
in investigating future sex crimes.”).
• People v. Montaine, 7 P.3d 1065, 1067 (Colo. App. 1999)
(“Although the duty to register flows directly from defendant’s
conviction as a sex offender, it does not enhance defendant’s
punishment for the offense.”).3
3
Similar Colorado cases not cited in J.O. include Fendley v. People,
107 P.3d 1122, 1125 (Colo. App. 2004) (“The purpose of sex
offender registration is not to inflict additional punishment on a
person convicted of a sexual offense, but rather to aid law
38
¶ 64 The J.O. division explained that these cases “comport with the
position of the Supreme Court” in Smith v. Doe, 538 U.S. 84, 93
(2003) (upholding Alaska Sex Offender Registration Act’s
constitutionality because statutory text’s stated public safety
objective was nonpunitive). J.O., ¶ 22. And it pointed out that
many of them recognize the General Assembly’s expressly
nonpunitive intent as to sex offender registration:
The general assembly declares . . . that, in
making this information available to the
public, as provided in this section and section
16-22-110(6), it is not the general assembly’s
intent that the information be used to inflict
retribution or additional punishment on any
person convicted of unlawful sexual behavior
or of another offense, the underlying factual
basis of which involves unlawful sexual
behavior.
§ 16-22-112(1), C.R.S. 2018.
enforcement officials in investigating future sex crimes and to
protect the public safety.”); People v. Tuffo, 209 P.3d 1226, 1230
(Colo. App. 2009) (“[T]he registration and notification requirements
established in the SVP statute are intended to protect the
community rather than punish the offender.”); and People in
Interest of I.S., 2017 COA 155, ¶ 9 (“Because sex offender
registration is not an element of a defendant’s sentence, it is of no
consequence to this appeal that the court later voided I.S.’s first
sentence.”).
39
¶ 65 Of course, this statute applies here just as it did in J.O. And
the Supreme Court has not retreated from Smith.
¶ 66 To dispel the majority’s conclusion that the “issue of whether
the punitive effects of CSORA’s lifetime registration requirement for
juveniles are sufficient to override its stated nonpunitive purpose
warrants examination through fresh lenses,” supra ¶ 30 , three of
our prior cases deserve more than a summary.
¶ 67 In Stead, 66 P.3d at 121, the division applied the factors in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), to
determine whether a defendant’s placement on the internet sex
offender list constituted punishment. The division explained
that the internet notification scheme may have
the purpose or effect of a punishment in that it
is triggered by a criminal offense, and it may
require an additional finding of scienter.
However, the scheme is not punitive in that it
imposes no fine, confinement, or restraint; it
has an expressly nonpunitive intent and
purpose; it is not traditionally considered a
type of punishment; and it is not excessive in
relation to the public safety purposes it serves.
Stead, 66 P.3d at 123. It concluded that “taken as a whole, the
Internet posting provision of the sex offender statute does not
constitute additional punishment.” Id.
40
¶ 68 Similarly, in People v. Rowland, 207 P.3d 890, 892 (Colo. App.
2009), the division applied the Mendoza-Martinez factors to section
16-13-903(3)(a), C.R.S. 2018, which requires that “the sexually
violent predator’s status as being subject to community notification
shall be entered in the central registry of persons required to
register as sex offenders created pursuant to section 16-22-110.”
Then the division held that the community notification
requirements did not constitute punishment for the following
reasons.
• “[C]ommunity notification does not impose an affirmative
disability or restraint because it does not, on its face, restrict
where an offender may live or work and does not alter either
the length of incarceration or the parole eligibility date.”
Rowland, 207 P.3d at 893.
• “Notification to the affected community has not traditionally
been considered punishment.” Id. at 894.
• Even though community notification requires a finding of
scienter, this “standing alone does not require treating a
statute as punishment.” Id.
41
• “[C]ommunity notification requirements may be like
punishment because they have a deterrent effect . . . [but] this
factor is inconclusive.” Id.
• Although “[t]he behavior to which community notification
attaches is a crime . . . ‘[the General Assembly] may impose
both a criminal and a civil sanction in respect to the same act
or omission.’” Id. (quoting United States v. Ward, 448 U.S.
242, 250 (1980)).
• “[T]he General Assembly’s stated purpose is to protect the
community. Informing and educating the community . . . are
rationally connected to this purpose.” Id.
• “The costs of notifying the target groups or specific
communities does not appear to be excessive in light of the
public safety purpose of the legislation and the controlled
procedures for disseminating the information.” Id.
¶ 69 Sexually violent predator designation is at least as impactful
on the registrant as sex offender registration alone. See § 16-22-
108(1)(d)(I), C.R.S. 2018 (“Any person who is a sexually violent
predator . . . has a duty to register for the remainder of his or her
42
natural life . . . .”). Given the offenses that lead to SVP designation,
greater approbation may well attach. § 16-22-102(7), C.R.S. 2018.
¶ 70 Most recently, in People in Interest of C.M.D., 2018 COA 172,
the division analyzed these factors to conclude CSORA is not
punishment as applied to a juvenile who — like T.B. — is subject to
mandatory lifetime sex offender registration. The division held that
“the statute itself does not impose an ‘affirmative disability or
restraint.’ Unlike prison, probation, or parole, registration does not
limit where offenders may live or where they may work, although
local ordinances may do so.” Id. at ¶ 23 (quoting Smith, 538 U.S. at
99). It also determined:
• “[T]he statute’s operation does not ‘promote the traditional
aims of punishment — retribution and deterrence.’” Id.
(quoting Mendoza-Martinez, 372 U.S. at 168). Rather, “[t]hose
aims are primarily furthered by imposition of the sentence
associated with the offense, not the associated registration
requirement.” Id.
• “[A]lthough the conduct to which registration applies is
already a crime, that crime carries its own punishment; any
43
punishment arising from a failure to register results from a
proceeding separate from the original offense.” Id.
• “[T]he stated and rational purpose of sex offender registration
is to protect the public, and requiring registration is not
excessive in light of this purpose.” Id.
¶ 71 Because Stead, Rowland, and C.M.D. are particularly well
reasoned, I decline even to revisit all but one of the
Mendoza-Martinez factors. As to the last such factor — whether the
sanction appears excessive in relation to the alternative purposes
assigned — these cases did not evaluate protecting the public from
an offender who, like T.B., had been determined to pose little risk of
reoffending. Even so, T.B.’s argument that lifetime sex offender
registration constitutes punishment because of this determination
misses the mark in at least three ways.
¶ 72 First, T.B. disregards that “[t]he determination whether an
offender is likely to reoffend is an inexact science.” State v. Yost,
2008-Ohio-3682, ¶ 11, 2008 WL 2822291, *2 (Ohio Ct. App. July
24, 2008). Indeed, “there appears to be a consensus among experts
that it is impossible to say that a person who has committed a sex
offense — which by definition includes every person potentially
44
subject to registration under the act — poses no risk of reoffense.”
L.L. v. Commonwealth, 20 N.E.3d 930, 938 (Mass. 2014). And here,
the trial court did not have the benefit of expert testimony.
¶ 73 Second, T.B. mistakenly assumes that protecting the public
from him is the only purpose for registration. As discussed in Part
III.E below, the government also has an interest in assisting law
enforcement. And law enforcement may legitimately choose to start
investigating a sex offense with a known sex offender in the vicinity
of the crime. For example, even if such an offender poses a very low
risk of reoffending, the offender may be able to provide leads to
other offenders who do pose such a risk.
¶ 74 Third, as also discussed Part III.E, providing notice to the
public about a sex offender who has committed a crime requiring
registration is informational. Given the inherent imprecision in
predicting that offender’s future criminality, informed citizens can
— and should be allowed to — make their own risk assessments,
for themselves and their vulnerable family members. See Smith,
538 U.S. at 104 (Sex offender registration “allow[s] the public to
assess the risk on the basis of accurate, nonprivate information
about the registrants’ convictions.”).
45
¶ 75 In light of these nonpunitive purposes, I reject the majority’s
conclusion that lifetime sex offender registration of an offender such
as T.B. is an excessive sanction and thus punishment.
¶ 76 But does Millard v. Rankin, 265 F. Supp. 3d 1211, 1225 (D.
Colo. 2017), cited by the majority as one of three reasons for
discarding nearly two decades of this court’s precedents, require a
contrary conclusion? Of course, as the majority admits, we are not
bound by Millard. 4 See, e.g., Monez v. Reinertson, 140 P.3d 242,
245 (Colo. App. 2006) (“While we must follow the United States
Supreme Court’s interpretation of federal law, we are not bound by
decisions of lower federal courts.”).
¶ 77 More importantly, as the division in C.M.D., ¶ 24, explained:
Although we conclude that the CSORA is not
punishment . . . we recognize that the federal
court in Millard, on which C.M.D. relies,
reached a contrary conclusion. In that case,
three registered sex offenders testified to
specific adverse consequences they had
suffered — including forced changes of
residence, one man’s exclusion from his own
children’s school, and difficulties in obtaining
or maintaining employment — as a result of
the registration requirement. The court
observed that such evidence of “actual adverse
4
An appeal has been filed in Millard with the Tenth Circuit, case
number 17-1333, docketed September 21, 2017.
46
consequences” of sex offender registration was
relevant to the plaintiffs’ Eighth Amendment
claim. 265 F. Supp. 3d at 1222. After
acknowledging the non-punitive legislative
intent of the CSORA, the court concluded that,
based on the testimony, the statute’s effects on
the three plaintiffs before it were clearly
punitive.
¶ 78 By contrast, here the trial court made no findings about how
registration impacted T.B. As to the evidence of adverse effects on
T.B., he expressed pride in his employment as a fast-food
restaurant manager, but believed he was being held back by the
continued obligation to register as a sex offender. And his
probation officer testified that T.B. “can’t seem to get a better job.
He can’t seem to get an apartment because of the scrutiny that he’s
under when he applies.” This evidence falls short of Millard, even
were I to accept its rationale.
C. Differences Between Juveniles and Adults
¶ 79 T.B. urges us to view whether lifetime sex offender registration
for juveniles constitutes punishment through the prism of Supreme
Court cases like Graham, Miller, and Roper. And the majority
identifies these cases as a second reason for going against this
court’s unanimous precedent. But the division in J.O. rejected this
47
very argument. See J.O., ¶¶ 2, 21-30 (Lifetime sex offender
registration did not violate J.O.’s constitutional rights even though
juvenile offenders are “different from adults in their diminished
culpability and greater prospects for reform.” (quoting People v.
Tate, 2015 CO 42, ¶ 28)); see also C.M.D., ¶ 20 (agreeing with J.O.).
¶ 80 True, unlike the juvenile in J.O., T.B. cannot petition to
discontinue registration. Still, the amount of time during which a
sex offender is required to register does not transform the
registration requirement into punishment. See Sowell, 327 P.3d at
277 (“Nor does modification of this requirement from an indefinite
to a lifelong duty to register transform [sex offender] registration
into a punishment.”). And cases that have reached the opposite
conclusion — such as In re C.P., 967 N.E.2d 729, 741 (Ohio 2012)
— were decided in jurisdictions where sex offender registration
requirements are considered punishment. See State v. Williams,
952 N.E.2d 1108, 1112 (Ohio 2011) (“[A]ll doubt has been removed:
[Ohio’s sex offender registration statute] is punitive.”).
¶ 81 As well, reliance on Roper, Graham, and Miller to show an
Eighth Amendment violation is circular. These cases all focus on
the differences between children and adults in imposing
48
punishments. See People v. Gutierrez, 324 P.3d 245, 262 (Cal.
2014) (“At the core of Miller’s rationale is the proposition —
articulated in Roper, amplified in Graham, and further elaborated in
Miller itself — that constitutionally significant differences between
children and adults ‘diminish the penological justifications for
imposing the harshest sentences on juvenile offenders.’” (quoting
Miller, 567 U.S. at 472)). Yet, recognizing that “children are less
culpable and more capable of change than adults is relevant in
determining whether the harshest punishment is appropriate, but it
does not establish that sex offender registration is
punishment . . . .” In re J.C., 221 Cal. Rptr. 3d 579, 592 (Cal. Ct.
App. 2017)); see also State v. Martin, 61 N.E.3d 537, 543 (Ohio Ct.
App. 2016) (“The flaw in Martin’s argument is that he is trying to
equate a death sentence or a life sentence without the possibility of
parole with having to register as a sex offender for life. It is illogical
to do so and, as such, we decline to extend the reasoning in the
three United States Supreme Court cases to the facts present
here.”).
¶ 82 So, affording a repeat juvenile sex offender the leniency
espoused in these cases bootstraps leniency as an answer to the
49
punishment question. But as shown above, at least in Colorado,
sex offender registration is not a punishment.
¶ 83 As the majority points out, in six states Eighth Amendment
jurisprudence as applied to juvenile sex offenders has evolved. And
this trend, according to the majority, is a third reason for breaking
ranks with other divisions of this court. But in one of those states
— Illinois — its supreme court has not yet spoken. And these cases
were available to the C.M.D. division for its consideration.
¶ 84 As well, in other equally recent cases, the majority’s decision
to treat lifetime registration as punishment continues to be rejected.
See, e.g., J.C., 221 Cal. Rptr. 3d at 593 (“Because J.C. has failed to
establish that juvenile sex offender registration is punishment, his
claim that registration is cruel and unusual punishment must
fail.”); State v. Boche, 885 N.W.2d 523, 532 (Neb. 2016) (“Because
we conclude the lifetime registration requirements imposed on [the
juvenile] are not punishment, his argument that these registration
requirements amount to cruel and unusual punishment must
necessarily fail.”); In Interest of Justin B., 799 S.E.2d 675, 681 (S.C.
2017) (“The requirement that . . . juveniles who commit criminal
50
sexual conduct must register as a sex offender and wear an
electronic monitor is not a punitive measure . . . .”).
¶ 85 This mix of cases hardly presents a tidal wave that we must
ride or risk being washed away. Instead, absent an overarching
constitutional right — which the Supreme Court has not identified
— this difference of opinion illustrates federalism. For this reason,
the majority’s holding would be a choice better made by our
supreme court. See People v. Herrera, 39 Cal. Rptr. 3d 578, 586
(Cal. Ct. App. 2006) (“[W]e . . . are unwilling to blaze a new trail
after the courts have followed a single path for decades. If
appropriate, any such change of direction is better left to the
Supreme Court.”).
¶ 86 On the one hand, having discerned no punishment, I need not
address whether the purported punishment is cruel and unusual.
But on the other hand, because the majority finds an Eighth
Amendment violation, it does not address T.B.’s alternative due
process claim. So, I must address that claim as well.
III. T.B.’s Due Process Rights Were Not Violated
¶ 87 T.B. next contends lifetime sex offender registration for repeat
juvenile sex offenders violates due process. Although his opening
51
brief does not clearly distinguish between procedural and
substantive due process, because he raised both principles below, I
interpret his appellate arguments as also encompassing both of
them, but discern no constitutional violation under either principle.
A. Standard of Review and Law
¶ 88 The Constitution guarantees that the government shall not
deprive any person of an interest in “life, liberty or property without
due process of law.” U.S. Const. amend. XIV, § 1. “This clause
imposes two different constraints on governmental decisions:
procedural due process and substantive due process.” M.S. v.
People, 2013 CO 35, ¶ 9; see Turney v. Civil Serv. Comm’n, 222 P.3d
343, 352 (Colo. App. 2009) (“Procedural due process . . . requires
fundamental fairness in procedure and is met if the party is
provided with notice and an opportunity to be heard. Substantive
due process . . . guarantees that the state will not deprive a person
of those rights for arbitrary reasons regardless of how fair the
procedure is.”) (citation omitted); Salazar v. Am. Sterilizer Co., 5
P.3d 357, 371 (Colo. App. 2000) (“Procedural due process requires
that a party be given notice and an opportunity to be heard. It also
requires a fundamental fairness in procedure. Substantive due
52
process requires that legislation be reasonable and not arbitrary or
capricious.”) (citation omitted).
¶ 89 Whether lifetime sex offender registration violates due process
is a question of law subject to de novo review. See People in Interest
of C.J., 2017 COA 157, ¶ 25.
B. T.B. Has Not Identified a Liberty Interest or a Fundamental
Right
¶ 90 I start with this issue because “[t]he requirements of
procedural due process apply only to the deprivation of interests
encompassed by the Fourteenth Amendment’s protection of liberty
and property.” M.S., ¶ 10 (quoting Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 569 (1972)). In other words, absent a “denial of
a liberty or property interest . . . the government does not have to
provide procedural due process.” Id.
¶ 91 Likewise, under substantive due process, a statute that
infringes on a fundamental right must be narrowly tailored to serve
a compelling state interest. Jones v. Samora, 2016 COA 191, ¶ 72.
But in the absence of a fundamental right, the applicable standard
of review for a substantive due process challenge is rational basis.
Ferguson v. People, 824 P.2d 803 (Colo. 1992). And rational basis
53
review “is especially deferential to legislative choice.” Culver v. Ace
Elec., 971 P.2d 641, 646 (Colo. 1999).
¶ 92 T.B. argues that CSORA “harms the reputation of juvenile
registrants by branding them as sex offenders and making public
juvenile offenses that otherwise would be kept private.” But he
cites neither United States Supreme Court nor Colorado authority,
and I have not found any, recognizing reputation as a protected
liberty interest. To the contrary, “mere injury to reputation, even if
defamatory, does not constitute the deprivation of a liberty
interest.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003);
accord Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299, 306 (Colo.
1992) (“[I]njury to reputation alone, absent some additional injury
to a right or status established by state law, does not constitute a
deprivation of any liberty or property interest . . . .”).
¶ 93 Nor does T.B. cite any binding federal precedent — much less
any Colorado authority — recognizing reputation as a fundamental
right. This lack of authority makes sense because courts should be
“reluctant to recognize new rights as fundamental.” Evans v.
Romer, 882 P.2d 1335, 1359 (Colo. 1994), aff’d, 517 U.S. 620
54
(1996); see also Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010)
(“[T]here is no fundamental right to one’s own reputation . . . .”).
¶ 94 Fundamental rights are liberties “deeply rooted in this Nation’s
history and tradition.” Moore v. City of East Cleveland, 431 U.S.
494, 503 (1977). A right to be free from sex offender registration
because it infringes on a juvenile’s reputation does not meet this
standard. See Vaughn v. State, 391 P.3d 1086, 1096 (Wyo. 2017)
(“[W]e conclude that juveniles who have been convicted of serious
sex offenses do not have a fundamental right to be free from the
registration and notification requirements . . . even if those require
information concerning them and their offenses to be disseminated
in limited ways and to potentially remain in place for life.”); see also
In re A.C., 54 N.E.3d 952, 962 (Ill. App. Ct. 2016) (“Respondent cites
no controlling case law establishing that a ‘deeply rooted’
fundamental right is violated by juveniles being subjected to the
registration or notification provisions at issue.”); Justin B., 799
S.E.2d at 681 (“A delinquent juvenile’s reputation may be in greater
need of protection than the reputation of an adult convicted of a
felony sex crime, but the juvenile’s interest in that reputation is still
neither liberty nor property.”).
55
¶ 95 In sum, given the lack of precedent recognizing a juvenile’s
reputation as a liberty interest or a fundamental right, I decline to
do so here.
C. The Irrebuttable Presumption Doctrine Does Not Apply
¶ 96 T.B.’s due process arguments — both procedural and
substantive — assume that lifetime sex offender registration for
repeat juvenile sex offenders rests on an irrebuttable presumption
of “ongoing, lifetime recidivism.” See In re R.M., No. 666 EDA 2014,
2015 WL 7587203, at *25 (Pa. Super. Ct. Feb. 13, 2015) (“[A]n
irrebuttable presumption claim generally challenges both the
statute, i.e. the substance, and the procedure employed by the
statute.”). This assumption does not survive scrutiny.
¶ 97 True enough, “[s]tatutes creating permanent irrebuttable
presumptions have long been disfavored under the due process
clauses of the Fifth and Fourteenth Amendments to the United
States Constitution.” People in Interest of S.P.B., 651 P.2d 1213,
1217 (Colo. 1982). And when an irrebuttable presumption has
been used, the “most common remedy applied is requiring the
decision maker to permit rebuttal and thus to allow exceptions to
general rules.” Id.
56
¶ 98 But in S.P.B., our supreme court explained that a “threshold
requirement for invocation of this remedy” is that the “case must be
appropriate for review under a heightened standard of scrutiny.”
Id. In other words, again a fundamental right or liberty interest
must be at stake.
¶ 99 This threshold requirement was met in In re J.B., 107 A.3d 1,
19 (Pa. 2014), on which T.B. relies. There, the court explained that
in Pennsylvania, “juvenile offenders have a protected right to
reputation.” Id. Unsurprisingly, given this right, the court held
that sex offender registration based on a “presumption of
recidivism” violates juvenile offenders’ due process rights. Id. at 19-
20. But as explained above, Colorado does not recognize reputation
as a fundamental right or a liberty interest.
¶ 100 Even if Colorado did recognize such an interest, however,
lifetime sex offender registration under CSORA is not based on an
irrebuttable presumption of future recidivism. Rather, it is based on
demonstrated past recidivism — juveniles who have been
adjudicated of more than one sex offense. See Doe v. Moore, 410
F.3d 1337, 1342 (11th Cir. 2005) (“Appellants argue that the Sex
Offender Act violates substantive due process by creating an
57
irrebuttable presumption of dangerousness,” but “the Sex Offender
Act here does not turn on the dangerousness of the offender, merely
the fact that he or she was convicted.”).
¶ 101 CSORA does not say anything about a juvenile’s risk of
recidivism or the juvenile’s current level of dangerousness. To the
contrary,
[t]he Colorado sex offender registry includes
only those persons who have been required by
law to register and who are in compliance with
the sex offender registration laws. Persons
should not rely solely on the sex offender
registry as a safeguard against perpetrators of
sexual assault in their communities. The
crime for which a person is convicted may not
accurately reflect the level of risk.
§ 16-22-110(8), C.R.S. 2018 (emphasis added).
¶ 102 Because the four cases on which T.B. relies all depend on
irrebuttable presumptions, expressly or by necessary implication,
they are distinguishable. See Vlandis v. Kline, 412 U.S. 441 (1973)
(out-of-state applicants could never become residents for tuition
purposes); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed fathers
could never be fit parents); Bell v. Burson, 402 U.S. 535 (1971)
(fault warranted suspension of driving privileges); City & Cty. of
Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977) (masseuse of
58
different sex than client will engage in illegal sex acts). Not so with
CSORA.
¶ 103 For these reasons, I decline to apply the irrebuttable
presumption doctrine to sex offender registration for repeat juvenile
sex offenders.
D. Lifetime Sex Offender Registration for Repeat Juvenile Sex
Offenders Does Not Violate Procedural Due Process
¶ 104 T.B. argues that his due process rights were violated because
had “judicial discretion and individualized assessment been allowed
. . . [his] petition for removal from the sex-offender registry would
have been granted.” I read this argument as invoking procedural
due process.
¶ 105 Possibly recognizing the lack of a protected liberty interest,
T.B. instead relies on his “property interests by authorizing
law-enforcement agencies to charge $75 for initial registration and
$25 for subsequent registrations.” But “the protections offered by
procedural due process ‘are not as stringent when a deprivation of
property is involved as opposed to a deprivation of a personal
liberty.’” Colo. Ins. Guar. Ass’n v. Sunstate Equip. Co., 2016 COA
59
 64, ¶ 54 (quoting Dewey v. Hardy, 917 P.2d 305, 308 (Colo. App.
1995)) (cert. granted Oct. 31, 2016).
¶ 106 T.B. cites no authority that a registration fee — as opposed to
a penalty — implicates due process. It does not. See Mueller v.
Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014) (“A fee is
compensation for a service provided to, or alternatively
compensation for a cost imposed by, the person charged the fee. By
virtue of their sex offenses the plaintiffs have imposed on the State
of Wisconsin the cost of obtaining and recording information about
their whereabouts and other circumstances. The $100 annual fee
is imposed in virtue of that cost, though like most fees it doubtless
bears only an approximate relation to the cost it is meant to offset.
A fine, in contrast, is a punishment for an unlawful act; it is a
substitute deterrent for prison time and, like other punishments, a
signal of social disapproval of unlawful behavior.”); see also
Kuhndog, Inc. v. Indus. Claim Appeals Office, 207 P.3d 949, 950
(Colo. App. 2009) (“The imposition of penalties constitutes a
deprivation of property and, therefore, implicates employer’s due
process rights.”).
60
¶ 107 Unlike a penalty, under CSORA, “[t]he amount of the fee shall
reflect the actual direct costs incurred by the local law enforcement
agency in implementing the provisions of this article.”
§ 16-22-108(7)(a). And failure to pay the registration fee does not
result in criminal liability:
The local law enforcement agency may waive
the fee for an indigent person. For all other
persons, the local law enforcement agency may
pursue payment of the fee through a civil
collection process or any other lawful means if
the person is unable to pay at the time of
registration. A local law enforcement agency
shall accept a timely registration in all
circumstances even if the person is unable to
pay the fee at the time of registration.
§ 16-22-108(7)(b).
¶ 108 But even if T.B. has asserted a protected property interest, his
due process argument ignores Colorado and Supreme Court
precedent that a juvenile “has no procedural due process right to a
hearing to prove a fact immaterial to the state’s statutory scheme
before being required to register as a sex offender.” People in
Interest of C.B.B., 75 P.3d 1148, 1151 (Colo. App. 2003).
¶ 109 In C.B.B., like here, the juvenile argued that he was denied
procedural due process because CSORA “does not provide a hearing
61
to determine whether an offender is currently dangerous.” Id. at
1149. The division disagreed. It held that a sex offender’s “current
level of dangerousness is immaterial under [CSORA] because his
duty to register was triggered solely by his conviction.” Id. at 1151;
see also Conn. Dep’t of Pub. Safety, 538 U.S. at 7 (determining that
procedural due process is satisfied where Connecticut sex offender
registration is based “on an offender’s conviction alone — a fact that
a convicted offender has already had a procedurally safeguarded
opportunity to contest”).
¶ 110 Especially in light of Connecticut Department of Public Safety, I
follow the division in C.B.B. and conclude that T.B. was not denied
procedural due process.
E. Lifetime Sex Offender Registration for Juveniles Does Not Violate
Substantive Due Process
¶ 111 Finally, I reject T.B.’s arguments that lifetime sex offender
registration for juveniles is unconstitutional on its face and as
applied to him because it violates substantive due process.
¶ 112 Under the rational basis test, a statute is presumed to be
constitutional; the burden is on the party challenging the statute to
establish beyond a reasonable doubt that the statutory provision
62
lacks a rational relationship to a legitimate governmental interest.
Pace Membership Warehouse v. Axelson, 938 P.2d 504, 506 (Colo.
1997). In conducting this review, “we do not decide whether the
legislature has chosen the best route to accomplish its objectives.”
Dean v. People, 2016 CO 14, ¶ 13. Instead, “[o]ur inquiry is limited
to whether the scheme as constituted furthers a legitimate state
purpose in a rational manner.” Id.
¶ 113 As the United States Supreme Court has explained, “[s]tates
are not required to convince the courts of the correctness of their
legislative judgments” under a rational basis review. Minnesota v.
Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). “Rather, ‘those
challenging the legislative judgment must convince the court that
the legislative facts on which the classification is apparently based
could not reasonably be conceived to be true by the governmental
decisionmaker.’” Id. (quoting Vance v. Bradley, 440 U.S. 93, 111
(1979)); see FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)
(A rational basis “may be based on rational speculation
unsupported by evidence or empirical data.”); Bradley, 440 U.S. at
108 (“Even if the classification involved . . . is to some extent both
underinclusive and overinclusive, and hence the line drawn by
63
Congress imperfect, it is nevertheless the rule that in a case like
this ‘perfection is by no means required.’” (quoting Phillips Chem.
Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 385 (1960))). As
everyone would agree, this test “imposes an admittedly enormously
high bar for challengers seeking to invalidate perceived
unconstitutional statutes.” Parker v. Webster Cty. Coal, LLC, 529
S.W.3d 759, 771 (Ky. 2017).
¶ 114 Under these principles, “[a] statute can be stricken under the
rational basis standard only if there exists no reasonably
conceivable set of facts to establish a rational relationship between
the statute and a legitimate governmental purpose.” Lobb v. Indus.
Claim Appeals Office, 948 P.2d 115, 118 (Colo. App. 1997).
Importantly, while a statute might create “a harsh result in some
instances,” this “does not mean that the statute fails to meet
constitutional requirements under the rational basis standard.” Id.
¶ 115 So, the sole question I must answer is this: Does lifetime sex
offender registration for repeat juvenile sex offenders rationally
relate to a legitimate governmental purpose? My answer is “yes.”
64
¶ 116 According to the Colorado Bureau of Investigation website,5
the goals of sex offender registration include enhancing public
safety, deterring sex offenders from committing similar crimes, and
providing an investigative tool for law enforcement. See Curtiss v.
People, 2014 COA 107, ¶ 8 (Sex offender registration “aid[s] law
enforcement officials in investigating future sex crimes.”); Jamison,
988 P.2d at 180 (“[R]egistration is required in order to aid law
enforcement officials in investigating future sex crimes and to
protect the public safety.”).
¶ 117 T.B. does not argue — nor could he — that requiring lifetime
sex offender registration for some adult offenders lacks a rational
relationship to these goals. See People v. Harper, 111 P.3d 482, 485
(Colo. App. 2004) (“[S]ex offenders have a ‘frightening and high’ risk
of recidivism, see McKune v. Lile, 536 U.S. 24, 34 (2002); Smith v.
Doe, 538 U.S. 84, 103 (2003) . . . .”).
¶ 118 Instead, he argues that the analysis changes when the
offender was a juvenile at the time of the offenses. This is so, he
continues, because lifetime registration for a juvenile is at odds with
5
Colorado Bureau of Investigation, Registration,
https://perma.cc/HD4C-PYR4.
65
the juvenile justice system’s rehabilitative purpose and it is
“overinclusive because it impacts many juveniles . . . who are
unlikely to sexually offend as adults.” As to purported
overinclusiveness, according to T.B., research shows that “juveniles
adjudicated for sex offenses (even multiple sex offenses) are not
likely to sexually reoffend as adults.” 6
¶ 119 To be sure, the “overriding goal of the Children’s Code [is] to
provide guidance and rehabilitation to an adjudicated delinquent
child in a manner consistent with the best interests of the child and
the protection of society, ‘rather than fixing criminal responsibility,
guilt, and punishment.’” S.G.W. v. People, 752 P.2d 86, 91 (Colo.
1988) (quoting People in Interest of T.M., 742 P.2d 905, 907 (1987)).
Yet, to the extent that the Children’s Code affords special treatment,
T.B. received it in the underlying adjudication and sentencing. See
6
See Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 13
(2013) (“This research shows that juveniles adjudicated delinquent
for sex offenses have extremely low rates of recidivism generally and
even lower rates of sexual reoffense.”); Human Rights Watch, Raised
on the Registry: The Irreparable Harm of Placing Children on Sex
Offender Registries in the US 28 (May 2013),
https://perma.cc/B3E9-AT5S (“[I]f a history of child sexual
offending is used to predict a person’s likelihood of future sex
offending, that prediction would be wrong more than nine times out
of ten.”).
66
United States v. Juvenile Male, 670 F.3d 999, 1014 (9th Cir. 2012)
(“[A]dequate procedural safeguards at the conviction stage are
sufficient to obviate the need for any additional process at the
registration stage.”).
¶ 120 Further, requiring lifetime registration for certain juveniles
aligns with the goal of the juvenile justice system to protect society.
See In re J.W., 787 N.E.2d 747, 759 (Ill. 2003) (“Given the shift in
the purpose and policy of the Juvenile Court Act to include the
protection of the public from juvenile crime and holding juveniles
accountable, as well as the serious problems presented by juvenile
sex offenders, we find no merit to J.W.’s claim that requiring him to
register as a sex offender for life is at odds with the purpose and
policy of the Juvenile Court Act.”); In re M.A.H., 20 S.W.3d 860, 864
(Tex. App. 2000) (“Although we are aware that the juvenile justice
system is arranged with a special emphasis on the welfare of the
child, sex offenders present special problems. In answer, the
legislature enacted the registration . . . requirements in an apparent
attempt to strike a balance between the goals of providing for the
well-being of the child and protecting society from both the adult as
well as the youthful sex offender.”).
67
¶ 121 And in any event, the Children’s Code is a legislative creation,
not implementation of a constitutional mandate. So, the General
Assembly remained free to depart from some of its broader
objectives in treatment of repeat juvenile sex offenders.
¶ 122 To the extent that research suggests some such juveniles
subject to the lifetime registration requirements might not present a
significant risk for recidivism, rational basis review in response to a
facial challenge does not demand “mathematical exactitude.” City
of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); see People v.
Parker, 70 N.E.3d 734, 755-56 (Ill. App. Ct. 2016) (“While not every
offender is necessarily inclined to commit another sex offense,
subjecting that group as a whole to certain restrictions does serve a
legitimate state purpose which the SORA Statutory Scheme is
rationally related to achieving, even though it may not be ‘finely-
tuned’ to do so.” (quoting People v. Avila-Briones, 49 N.E.3d 428,
451 (Ill. App. Ct. 2015))). Thus, the “mere failure of a governmental
regulation to allow all possible and reasonable exceptions to its
application is not sufficient to render the regulation
unconstitutional.” Colo. Soc’y of Cmty. & Institutional Psychologists,
Inc. v. Lamm, 741 P.2d 707, 712 (Colo. 1987); see People v. Pollard,
68
54 N.E.3d 234, 247 (Ill. App. Ct. 2016) (“Although the [sex offender
registration] Statutory Scheme may be overinclusive, thereby
imposing burdens on offenders who pose no threat to the public
because they will not reoffend, there is a rational relationship
between the registration, notification, and restrictions of sex
offenders and the protection of the public from such offenders.”).
¶ 123 But what about T.B.’s argument that whatever may be true
about other juveniles, his risk of sexually reoffending has been
determined to be low and possibly zero? As discussed in Part II.B
above, this argument ignores reasons beyond recidivism for
requiring lifetime juvenile sex offender registration, such as
deterring potential future offenders other than the recidivist 7 and
providing an investigative tool for law enforcement. These interests
remain unchanged regardless of the sex offender’s age or likelihood
7
T.B. conflates “general deterrence” of all citizens with “special
deterrence” of the particular offender. See People v. Martin, 897
P.2d 802, 804 (Colo. 1995); see also United States v. Under Seal,
709 F.3d 257, 265 (4th Cir. 2013) (“[A]ny number of governmental
programs might deter crime without imposing punishment. To hold
that the mere presence of a deterrent purpose renders such
sanctions ‘criminal’ would severely undermine the Government’s
ability to engage in effective regulation.” (quoting Smith v. Doe, 538
U.S. 84, 102 (2003))).
69
to reoffend. See J.W., 787 N.E.2d at 758 (“The public interest is to
assist law enforcement in the protection of the public from juvenile
sex offenders. The Registration Act as applied to a 12-year-old child
serves that public interest by providing police officers ready access
to information on known juvenile sex offenders.”); Vaughn, 391 P.3d
at 1096 (“In protecting the public, [juvenile sex offender
registration] aids in the prevention, avoidance, and investigation of
future sex offenses.”); see also People v. Stevens, 91 N.Y.2d 270,
274-75 (N.Y. 1998) (identifying legislation’s goals to protect the
community from the dangers of recidivism by sex offenders, and to
assist law enforcement in the investigation and prosecution of sex
offenders); Doe v. Miller, 886 A.2d 310, 316 (Pa. Commw. Ct. 2005)
(“Information on class members is gathered in order to protect
against future offenses and to facilitate future investigations,
thereby enhancing public safety and welfare.”), aff’d, 901 A.2d 495
(Pa. 2006).
¶ 124 The General Assembly also could have concluded that the
public has a legitimate interest in knowing the location of repeat sex
70
offenders — regardless of their likelihood of recidivism. 8 See Smith,
538 U.S. at 101 (“The State makes the facts underlying the offenses
and the resulting convictions accessible so members of the public
can take the precautions they deem necessary before dealing with
the registrant.”). That the public may overreact to this information
is not a rational basis defect. Cf. State v. Imburgia, 2007-Ohio-390,
¶ 26, 2007 WL 274419, *4 (Ohio Ct. App. Feb 1, 2007) (“[T]he
courts have no control over public reaction and any reprisal by a
citizen certainly cannot be considered a ‘penalty’ which the court
has imposed.”). And apart from enforcing constitutional limitations,
“we may not substitute our judgment for that of the [General
Assembly] as to the wisdom of the legislative choice.” People v.
Zinn, 843 P.2d 1351, 1354 (Colo. 1993).
¶ 125 Given all of this, I reject T.B.’s claim that lifetime sex offender
registration for repeat juvenile sex offenders violates substantive
8
The legislature need not have expressed this reason in enacting
sex offender registration legislation to survive rational basis
scrutiny. See United States v. Osburn, 955 F.2d 1500, 1505 (11th
Cir. 1992) (“[A]ny rationale Congress ‘could’ have had for enacting
the statute can validate the legislation, regardless of whether
Congress actually considered that rationale at the time the bill was
passed.”).
71
due process on its face or as applied to him, even in light of the
district court’s determination on his risk of reoffending. T.B.’s
arguments in favor of allowing all juveniles to petition for
discontinuing registration raise policy considerations better weighed
by the General Assembly. See Ruybalid v. Bd. of Cty. Comm’rs,
2017 COA 113, ¶ 18 (“[M]atters of public policy are better addressed
by the General Assembly,” not this court.) (cert. granted Apr. 30,
2018); In re Welfare of C.D.N., 559 N.W.2d 431, 435 (Minn. Ct. App.
1997) (“[W]e respectfully invite the legislature to review the
prudence of requiring all juveniles adjudicated for criminal sexual
conduct to register as predatory sexual offenders.”).
IV. Conclusion
¶ 126 I would affirm the order.
72