The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, IN the INTEREST OF T.B., Respondent/Cross-Petitioner
Supreme Court Case No. 19SC690
Supreme Court of Colorado
June 28, 2021
489 P.3d 752
En Banc
Attorneys for Respondent/Cross-Petitioner: Johnson & Klein, PLLC, Gail K. Johnson, Boulder, Colorado
Attorneys for Amici Curiae Colorado Constitutional, Criminal, and Juvenile Law Scholars: University of Denver Sturm College of Law, Sara Hildebrand, Denver, Colorado
En Banc
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1 T.B. committed two sexual offenses as a minor—the first when he was eleven years old and the second when he was fifteen. Because he was twice adjudicated delinquent for unlawful sexual behavior, the
¶2 Mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before
I. Background
A. The Development of Sex Offender Registries and Their Applicability to Juveniles
1. Sex Offender Registries Nationally
¶3 Sex offender registries emerged relatively recently as a direct result of several well-publicized crimes involving child victims in the late 1980s and early 1990s. Nichols v. United States, ––– U.S. ––––, 136 S. Ct. 1113, 1116, 194 L.Ed.2d 324 (2016). In response to these incidents, states around the country began enacting sex offender registration laws. Id.3 Congress followed suit in 1994, enacting the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. See
¶4 The Jacob Wetterling Act required each state to establish a sex offender registration program that met specified minimum standards.
¶5 In 2006, Congress replaced the Jacob Wetterling Act with the Sex Offender Registration and Notification Act,
¶6 SORNA also establishes a comprehensive national registration system, known as the National Sex Offender Registry,
¶7 Notably, SORNA covers a broader range of offenders by employing a three-tier offender classification,
¶8 In short, SORNA completely “redefined the landscape” of sex offender registration. Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 Hastings L.J. 1071, 1078 (2012). It applies to both juveniles and adults and “include[s] an ever-increasing number of registerable offenses, lengthening durational requirements, expanded personal information reporting requirements, harsher residency restrictions, the introduction of the GPS tracking device, and the systematic elimination of individualized assessment as a touchstone.” Id. at 1079.
2. Sex Offender Registries in Colorado
¶9 The General Assembly enacted Colorado‘s first sex offender registry in 1991. See ch. 69, sec. 1,
¶10 This changed in 2002 with the enactment of CSORA, a comprehensive registration and community notification scheme. See ch. 297, sec. 1,
¶11 CSORA expressly applies to juveniles who have been adjudicated delinquent for unlawful sexual behavior.
¶12 Moreover, upon request, local law enforcement agencies must release registry information, including juvenile information, to any person living in the agency‘s jurisdiction.
¶13 Although the registration requirement applies indefinitely, a court may, upon petition of removal by a registrant, enter an order discontinuing registration. See
¶14 Importantly, certain individuals— including those who have more than one conviction or adjudication for unlawful sexual behavior—are not eligible to petition for discontinuation of registration. See
B. Facts and Procedural History
¶15 In 2001, T.B. pleaded guilty to unlawful sexual contact—an offense he committed when he was eleven years old—and was adjudicated delinquent. He successfully completed probation, during which his treatment focused on family interactions and interventions. However, T.B. received only minimal offense-specific treatment, and his probation officer later admitted that the probation department “didn‘t really have a whole lot ... to go on” and “[was]n‘t in the position to provide [T.B.] with what he needed” at that time. In 2005, when T.B. was fifteen years old, he was again adjudicated delinquent after he pleaded guilty to sexual assault. This time, T.B. received offense-specific treatment and successfully completed probation.
¶16 In 2010, T.B. filed a pro se petition to discontinue sex offender registration in both
¶17 At the close of the hearing, the juvenile court stated:
To be honest with you, I think [T.B.] has earned the right not to have to register. It is clear to me ... the concerns related to [T.B.‘s] prior offenses no longer exist, and he is not a risk to sexually reoffend at this point in time because of all of the work that he‘s done.
The court therefore granted the petition as to the 2005 case. But the court expressed doubt that it could discontinue registration in the 2001 case under
¶18 In 2015, T.B., through counsel, filed a second petition to discontinue registration, arguing, as relevant here, that mandatory lifetime sex offender registration for offenses committed as a juvenile violated due process and constituted cruel and unusual punishment. Relying primarily on People in Interest of J.O., 2015 COA 119, ¶¶ 21-30, 383 P.3d 69, 73-75 (holding that sex offender registration under
¶19 A split division of the court of appeals reversed, concluding that CSORA‘s juvenile mandatory lifetime registration requirement constitutes punishment for
¶20 Nevertheless, the majority went on to hold that the juvenile mandatory lifetime registration requirement is so punitive in effect as to override the legislature‘s intent. First, it explained, “the effect of requiring a juvenile to register as a sex offender for life is reminiscent of traditional forms of punishment,” particularly due to the “dissemination of information” regarding “a juvenile‘s criminal history [that] would not otherwise be publicly available.” Id. at ¶ 34. Second, it determined that “CSORA‘s lifetime registration requirement promotes the traditional aims of punishment,” id. at ¶ 38, because “it imposes a sanction for past conduct” and “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,’ ” id. (quoting Starkey v. Okla. Dep‘t of Corr., 2013 OK 43, 305 P.3d 1004, 1028 (Okla. 2013)). Third, it reasoned that “for juveniles, the behavior to which CSORA applies is already a crime” in that the “lifetime registration requirement sweeps in only those who have been adjudicated for committing past crimes—and, once
¶21 Having concluded that juvenile mandatory lifetime sex offender registration constitutes punishment, the division remanded the case to the juvenile court for further proceedings regarding the “fact-intensive inquiry” of whether such punishment is cruel and unusual under the
¶22 Dissenting, Judge Webb highlighted that, without exception, other divisions of the court of appeals have concluded that CSORA‘s registration requirement is not a punishment, id. at ¶ 61 (Webb, J., dissenting), and that those divisions were due “considerable deference,” id. at ¶ 62 (quoting People v. Smoots, 2013 COA 152, ¶ 20, 396 P.3d 53, 57). He therefore declined to revisit all but one of the Mendoza-Martinez factors: “whether the sanction appears excessive in relation to the alternative purposes assigned.” Id. at ¶ 71.
¶23 As for that factor, Judge Webb articulated three reasons for concluding that CSORA‘s registration requirement is not an excessive sanction. First, “[t]he determination whether an offender is likely to reoffend is an inexact science.” Id. at ¶ 72 (alteration in original) (quoting State v. Yost, No. 90275, 2008 WL 2833291, at *2 (Ohio Ct. App. July 24, 2008)). Second, in addition to protecting the public from individual offenders, the registration requirement assists law enforcement officers, who “may legitimately choose to start investigating a sex offense with a known sex offender in the vicinity of the crime.” Id. at ¶ 73. And finally, “providing notice to the public about a sex offender who has committed a crime requiring registration is informational.” Id. at ¶ 74. Because there is an “inherent imprecision in predicting that offender‘s future criminality,” Judge Webb reasoned, providing registration information to the public allows each citizen to “make their own risk assessments.” Id.
¶24 The People petitioned this court for certiorari review, and T.B. cross-petitioned for certiorari review. We granted both petitions.9
II. Legal Principles
A. Standard of Review
¶25 We review the constitutionality of statutes de novo. Lucero v. People, 2017 CO 49, ¶ 13, 394 P.3d 1128, 1131. Under our doctrine of separation of powers, statutes are entitled to a presumption of constitutionality. People v. Graves, 2016 CO 15, ¶ 9, 368 P.3d 317, 322. Declaring a statute unconstitutional is thus “one of the gravest duties impressed upon the courts.” Rocky Mountain Gun Owners v. Polis, 2020 CO 66, ¶ 30, 467 P.3d 314, 323 (quoting Graves, ¶ 9, 368 P.3d at 322). However, we may not shirk this duty when a party has demonstrated that a statute is unconstitutional beyond a reasonable doubt. Id.
B. Juveniles and the Eighth Amendment
¶26 The
¶27
¶28 In a trio of cases— Roper, Graham, and Miller —the Supreme Court determined that sentencing practices that are constitutionally permissible in the context of adult offenders may violate the
¶29 This is so for several reasons. First, juveniles’ increased susceptibility to outside pressure, immature behavior, and impulsiveness means that “their irresponsible conduct is not as morally reprehensible as that of an adult.” Roper, 543 U.S. at 570, 125 S.Ct. 1183 (quoting Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion)). Both common sense and social science confirm that juveniles frequently demonstrate a “lack of maturity and an underdeveloped sense of responsibility” that “often result[s] in impetuous and ill-considered actions and decisions.” Id. at 569, 125 S.Ct. 1183 (quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993)); see also Graham, 560 U.S. at 68, 130 S.Ct. 2011 (“[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.“). And compared to adults, “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Roper, 543 U.S. at 569, 125 S.Ct. 1183. Given these characteristics, the transgressions of minors are viewed
¶30 Moreover, “the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.” Id. at 571, 125 S.Ct. 1183. This is because “[juveniles] are less likely to take a possible punishment into consideration when making decisions.” Graham, 560 U.S. at 72, 130 S.Ct. 2011. Deterrence-based justifications for punishment thus carry less weight in the context of offenses committed by juveniles.
¶31 Juvenile offenders are also more amenable to reform than adult offenders. “[T]he character of a juvenile is not as well formed as that of an adult,” and their personalities are “more transitory, less fixed.” Roper, 543 U.S. at 570, 125 S.Ct. 1183. Accordingly, their actions, even if heinous, “are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Graham, 560 U.S. at 68, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 570, 125 S.Ct. 1183); see also Roper, 543 U.S. at 570, 125 S.Ct. 1183 (“Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.” (quoting Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psych. 1009, 1014 (2003))).
¶32 Finally, the very fact of an offender‘s youth means that lifelong punishments are harsher in practice for juveniles than for adults. A juvenile often suffers the effects of such a sentence for “more years and a greater percentage of his life ... than an adult offender.” Graham, 560 U.S. at 70, 130 S.Ct. 2011. A lifelong punishment, “when imposed on a teenager, as compared with an older person, is therefore ‘the same ... in name only.’ ” Miller, 567 U.S. at 475, 132 S.Ct. 2455 (quoting Graham, 560 U.S. at 70, 130 S.Ct. 2011).
¶33 In light of these distinctive attributes of youth, mandatory punishments that are constitutional when applied to adult offenders can violate the
C. Prior Constitutional Challenges to Sex Offender Registration Statutes
¶34 Litigants have brought a range of constitutional challenges to CSORA and other sex offender registration schemes over the past three decades, with mixed results. The Supreme Court first addressed such a challenge in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). There, the Court was faced with the question of whether application of Alaska‘s sex offender registration scheme to adult offenders convicted before its passage constituted retroactive punishment in violation of the Ex Post Facto Clause,
¶35 Though we have never addressed the issue, divisions of our court of appeals have consistently followed Smith‘s reasoning to hold that registration pursuant to CSORA does not constitute punishment for purposes of the Ex Post Facto Clause or the
¶36 Litigants challenging juvenile sex offender registration schemes, however, have had more success. In relatively recent cases, three of our sister states have determined that mandatory sex offender registration requirements are unconstitutional when applied to juveniles. See In re C.P., 131 Ohio St. 3d 513, 967 N.E.2d 729, 732 (2012); In re J.B., 630 Pa. 408, 107 A.3d 1, 2 (2014); State in Int. of C.K., 233 N.J. 44, 182 A.3d 917, 919 (2018); cf. In Int. of T.H., 913 N.W.2d 578, 586-97 (Iowa 2018) (determining that Iowa‘s juvenile sex offender registration scheme constitutes punishment for purposes of the
¶37 In C.P., the Ohio Supreme Court held that Ohio‘s sex offender registration scheme constituted cruel and unusual punishment under both the U.S. and Ohio Constitutions to the extent that it mandated lifetime sex offender registration for certain juvenile offenders. 967 N.E.2d at 732.13 Citing Graham,
¶38 In J.B., the Pennsylvania Supreme Court determined that mandatory lifetime sex offender registration for juveniles created an irrebuttable presumption that juveniles will reoffend, in violation of due process. See 107 A.3d at 19-20. After reviewing studies examining juvenile sex offender recidivism rates, the court concluded that this presumption was unsupported given that “the vast majority of juvenile offenders are unlikely to recidivate.” Id. at 18. The court also found relevant the discussions in Roper, Graham, and Miller regarding the unique characteristics of juvenile offenders, noting that “these distinctions between adults and juveniles are particularly relevant in the area of sexual offenses, where many acts of delinquency involve immaturity, impulsivity, and sexual curiosity rather than hardened criminality ... [or] ‘irretrievable depravity.’ ” Id. at 19 (quoting Miller, 567 U.S. at 471, 132 S.Ct. 2455). Because the court determined that the registration scheme at issue violated due process through use of an irrebuttable presumption, it declined to address whether it also constituted cruel and unusual punishment. Id. at 11 n.20, 12 n.21.
¶39 Following similar logic, the Supreme Court of New Jersey struck down portions of New Jersey‘s sex offender registration scheme on state constitutional due process grounds. C.K., 182 A.3d at 919. Though it had upheld more limited and reviewable registration requirements in the past, the court reasoned that the addition of a mandatory lifetime registration requirement changed the analysis. See id. at 927-30. Noting that psychological studies and empirical evidence suggested low rates of recidivism for juvenile sex offenders, see id. at 921-22, 934, the court ultimately determined that, because juveniles are “not likely to reoffend,” the lifetime registration requirement for juvenile offenders “bears no rational relationship to a legitimate governmental objective,” id. at 919.
¶40 These cases offer two observations that we find particularly relevant to the constitutionality of mandatory lifetime sex offender registration for juveniles. First, each court noted that sex offender registration and community notification schemes have evolved considerably over the past two decades, mandating registration for a broader group of offenders and increasing notification requirements and other burdens for those on the registry. See C.P., 967 N.E.2d at 738-39; J.B., 107 A.3d at 2-9; C.K., 182 A.3d at 927-30. The statutory schemes challenged in each of the three cases, much like the provisions of CSORA challenged by T.B., are materially different than the more limited registration requirements that the Supreme Court addressed in Smith. We thus cannot mechanically apply Smith‘s holding and reasoning without accounting for these differences.
¶41 Second, all three courts recognized that, while the holdings in Roper, Graham, and Miller were limited to whether certain punishments were categorically impermissible for juveniles, the comments made by the Supreme Court in those cases regarding the unique characteristics of juvenile offenders are applicable to a broad range of constitutional questions. See C.P., 967 N.E.2d at 740-46; J.B., 107 A.3d at 18-19; C.K., 182 A.3d at 931-32; see also J.D.B. v. North Carolina, 564 U.S. 261, 272-73, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (noting
¶42 With this legal framework to guide our analysis, we turn to the issue of first impression before this court: whether mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes cruel and unusual punishment in violation of the
III. Analysis
¶43 We first address whether mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes punishment for purposes of the
A. Mandatory Lifetime Sex Offender Registration for Offenders with Multiple Juvenile Adjudications Constitutes Punishment for Purposes of the Eighth Amendment
¶44 Under Mendoza-Martinez, courts apply a two-part intent-effects test to determine whether a statute is punitive. See 372 U.S. 144, 83 S.Ct. 554. First, the court must determine whether the legislature intended the statute to be punitive. Smith, 538 U.S. at 92, 123 S.Ct. 1140. “If the intention of the legislature was to impose punishment, that ends the inquiry.” Id. If, however, the legislature intended the statute to be nonpunitive, the court must consider whether the statute is so punitive in effect as to override the legislature‘s intent. Id.
1. Intent
¶45 Throughout the statutory scheme, the General Assembly indicated that it did not intend for CSORA to be punitive. Indeed,
¶46 Notably, a court may exempt a person from the registration requirement if, among other things, the offender was younger than eighteen at the time of the offense and the court “determines that the registration requirement ... would be unfairly punitive and that exempting the person ... would not pose a significant risk to the community.”
2. Effects
¶47 To determine whether CSORA is punitive in effect, we consider a variety of factors, including (1) “[w]hether the sanction involves an affirmative disability or restraint,” (2) “whether it has historically been regarded as a punishment,” (3) “whether it comes into play only on a finding of scienter,” (4) “whether its operation will promote the traditional aims of punishment—retribution and deterrence,” (5) “whether the behavior to which it applies is already a crime,” (6) “whether an alternative purpose to which it may rationally be connected is assignable for it,” and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554.
¶48 One factor clearly weighs against finding CSORA to be punitive in effect: A finding of scienter is not required before imposing lifetime registration upon a juvenile. Instead, lifetime registration is required for any offender who has multiple juvenile adjudications. See
¶49 First, mandatory lifetime sex offender registration for juveniles involves an affirmative disability or restraint. Under CSORA, sex offenders are required, through annual, in-person registration, to disclose extensive personal information. See
¶50 Additionally, though Colorado imposes no statewide residency restrictions on sex offenders, individual municipalities may impose such restrictions. See C.M.D., ¶ 23, 452 P.3d at 138 (“[R]egistration does not limit where offenders may live or where they may work, although local ordinances may do so.“)17. And other states do impose statewide
¶51 A person‘s status as a sex offender also may affect that person in his pursuit of gainful employment. For example, an employer who conducts a criminal history check can discover whether the prospective employee is on the sex offender registry.
¶52 Second, sex offender registration and community notification programs resemble traditional forms of punishment, such as public shaming and humiliation. “Widespread dissemination of offenders’ names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the” offenders. Smith, 538 U.S. at 109, 123 S.Ct. 1140 (Souter, J., concurring in the judgment). CSORA‘s community notification provisions enable the use of “registry information to harass, victimize, or discriminate against sex offenders,” who may isolate themselves from the rest of society to avoid such consequences. Halbrook, supra at 18. In an era of social media, these realities are especially striking for juvenile offenders who are branded with the label of sex offender before their adult lives have even begun. Cf. Doe v. State, 167 N.H. 382, 111 A.3d 1077, 1097 (2015). True, the U.S. Supreme Court concluded in Smith that “the dissemination of accurate information about a criminal record, most of which is already public,” is not punishment. 538 U.S. at 98, 123 S.Ct. 1140. But that case involved adult offenders, whose convictions are “already a matter of public record.” Id. at 101, 123 S.Ct. 1140. Not so for juvenile offenders. The dissemination of information about juvenile sex offenders thus appears more punitive in light of the presumptive confidentiality of most other juvenile adjudications.
¶53 Third, mandatory lifetime sex offender registration for juveniles promotes the traditional aims of punishment—retribution and deterrence. Under CSORA, offenders with multiple juvenile adjudications are compelled to register for the remainder of their natural lives, regardless of individual risk to reoffend, and even when they no longer pose a threat to the community. As a result, the registration requirement appears to be retributive in nature, punishing a juvenile for his
¶54 Fourth, the behavior to which CSORA applies is already a crime. Indeed, the People acknowledge as much in their briefing, noting that “the underlying conduct that triggers the registration requirement is a crime; [T.B.] would not have been subject to CSORA‘s requirements but for the commission of his multiple sex offenses.”
¶55 Finally, and perhaps most importantly, mandatory lifetime sex offender registration for juveniles does not bear a rational connection to, and is excessive in relation to, CSORA‘s nonpunitive purposes of protecting the community and aiding law enforcement. As the U.S. Supreme Court has frequently observed, juvenile offenders generally are more amenable to rehabilitation and less likely to reoffend than their adult counterparts. See Graham, 560 U.S. at 68, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 570, 125 S.Ct. 1183); see also Miller, 567 U.S. at 479, 132 S.Ct. 2455. Given this capacity for reform, juvenile offenders are less likely to pose an ongoing threat to public safety after completion of their treatment and probation.
¶56 These general observations are borne out in empirical studies examining recidivism among juvenile sex offenders. A meta-analysis of over thirty studies conducted over the past twenty years found that the recidivism rate for juvenile sex offenders is less than three percent. See Michael F. Caldwell, Quantifying the Decline in Juvenile Sexual Recidivism Rates, 22 Psychol. Pub. Pol‘y & L. 414, 419 (2016); see also Halbrook, supra at 13-15. And among those juvenile offenders who did reoffend, the vast majority did so within three years of their first offense. See Caldwell, supra at 419. Mandatory lifetime registration for juveniles thus lacks a rational connection to, and is excessive in relation to, CSORA‘s nonpunitive purposes of protecting the community and aiding law enforcement in light of the low baseline recidivism rate for juvenile offenders and the narrow window during which juvenile offenders are likely to reoffend at all.
¶57 Moreover, a number of studies indicate that registration requirements have no statistically significant effect on reducing recidivism rates among offenders. See Molly J. Walker Wilson, The Expansion of Criminal Registries and the Illusion of Control, 73 La. L. Rev. 509, 523, 523 n.93 (2013). Indeed, in some instances, “registries may actually increase crime by alienating juvenile registrants from social supports and institutions (including education, housing, employment, and family) that reduce the risk of delinquent behaviors.” Halbrook, supra at 16.
¶58 In sum, mandatory lifetime sex offender registration for juveniles imposes affirmative disabilities and restraints; resembles traditional shame-based punishments; promotes deterrence and retribution; applies only to
B. Mandatory Lifetime Sex Offender Registration for Offenders with Multiple Juvenile Adjudications Violates the Eighth Amendment ‘s Prohibition on Cruel and Unusual Punishment
¶59 To decide whether mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications is impermissibly cruel and unusual, we first look to “‘objective indicia of society‘s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice.” Graham, 560 U.S. at 61, 130 S.Ct. 2011 (quoting Roper, 543 U.S. at 563, 125 S.Ct. 1183). Next, we must determine, “in the exercise of our own independent judgment,” whether mandatory lifetime sex offender registration “is a disproportionate punishment for juveniles.” Roper, 543 U.S. at 564, 125 S.Ct. 1183.
1. Objective Indicia of Societal Consensus
¶60 Courts look to objective indicia of societal consensus for evidence of the “evolving standards of decency” that animate the
¶61 Fewer than a third of our sister states have laws providing for mandatory lifetime sex offender registration of juveniles.21 Eight states and the District of Columbia do not subject juveniles to registration at all unless they are tried and convicted as adults.22 Another fifteen states, along with SORNA, do not require registration for offenses committed by juveniles under the age of fourteen.23 Other states allow courts discretion in determining whether to require registration for juveniles who have committed all but the most serious offenses.24 And of the states that do permit registration of juveniles, fourteen
¶62 While our sister states have adopted a wide variety of approaches to sex offender registration, a substantial majority of them decline to impose mandatory lifetime sex offender registration on juvenile offenders like T.B. CSORA‘s mandatory lifetime registration requirement for juveniles, therefore, is “truly unusual,” and our review of other states’ laws reflects a national consensus against such a punishment. Atkins, 536 U.S. at 316, 122 S.Ct. 2242; cf. C.P., 967 N.E.2d at 739 (“The assumption that a national consensus favored publication of juvenile sex offenders’ personal information [has] collapsed.“).
2. This Court‘s Independent Exercise of Judgment
¶63 “Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual.” Graham, 560 U.S. at 67, 130 S.Ct. 2011 (quoting Kennedy, 554 U.S. at 434, 128 S.Ct. 2641). Objective indicia of societal consensus inform our analysis, but “the Constitution contemplates that in the end our own judgment will be brought to bear” on whether mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications is permissible under the
¶64 After considering each of these factors, we conclude that CSORA violates the
¶65 While mandatory lifetime sex offender registration for juveniles is not as drastic a punishment as the sentences at issue in Roper, Graham, and Miller, it is a severe punishment nonetheless. Sex offender registries broadcast juvenile offenders’ misdeeds to the world, attaching a stigma that will last their entire lives. These juveniles are, “in effect, branded as irredeemable—at a point when their lives have barely begun and before their personalities are fully formed.” C.K., 182 A.3d at 934; see also C.P., 967 N.E.2d at 741-42 (“A juvenile ... who is subject to sex-offender notification will have his entire life evaluated through the prism of his juvenile adjudication.“).
¶66 The effects of publication on the sex offender registry are often disastrous for juvenile offenders. Although CSORA states that it is not intended to promote vigilante justice,27 one national survey of juvenile registrants suggests that over half have experienced violence or threats of violence against themselves or family members that they directly attribute to their registration. See Nicole Pittman & Alison Parker, Human Rights Watch, Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the U.S. 56 (2013), https://www.hrw.org/sites/default/files/reports/us0513_ForUpload_1.pdf [https://perma.cc/9ZLG-SAXA]. For many others, the stigmatization and challenges brought about by lifetime registration lead to self-harm; nearly one in five juvenile registrants surveyed had attempted suicide. Id. at 51. And beyond those more drastic consequences, juvenile registrants face effectively permanent, lifelong barriers to obtaining basic housing, education, and employment. See id. at 64-75.28
¶67 The severe consequences of registration and publication of a juvenile‘s sex offender status are compounded by the length and finality of the punishment. A mandatory lifetime registration requirement serves as a regular “reminder to [the juvenile] and the world that he cannot escape the mistakes of his youth.” C.P., 967 N.E.2d at 742. “While not a harsh penalty to a career criminal used to serving time in a penitentiary,” lifetime sex offender registration “means everything to a juvenile.” Id. The mandatory lifetime registration requirement, in effect, “means denial of hope; it means that good behavior and character improvement are immaterial.” Graham, 560 U.S. at 70, 130 S.Ct. 2011 (quoting Naovarath v. State, 105 Nev. 525, 779 P.2d 944, 944 (1989)).
¶68 The magnitude of punishment inflicted through mandatory lifetime sex offender registration is disproportionate to the comparatively diminished culpability of juvenile offenders. As the Supreme Court has repeatedly emphasized, juveniles have lesser culpability and greater capacity for reform than adult offenders. See Roper, 543 U.S. at 570-71, 125 S.Ct. 1183; Graham, 560 U.S. at 72-73, 130 S.Ct. 2011; Miller, 567 U.S. at 471, 132 S.Ct. 2455. 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.” Roper, 543 U.S. at 570, 125 S.Ct. 1183. Mandatory lifetime sex offender registration ignores these characteristics and uniformly deems certain classes of juvenile offenders to be “incorrigible” on the basis of actions taken before reaching the age of maturity—a “questionable” judgment that “improperly denies the juvenile offender a chance to demonstrate growth and maturity.” Graham, 560 U.S. at 73, 130 S.Ct. 2011.
¶69 Mandatory lifetime sex offender registration for juvenile offenders also fails to serve any legitimate penological goals. Indeed, by foreclosing any chance of redemption, mandatory lifetime registration stands in direct opposition to the goals of the juvenile justice system, which is “primarily designed to provide guidance, rehabilitation, and restoration for the juvenile.” Bostelman v. People, 162 P.3d 686, 691 (Colo. 2007); see also S.G.W. v. People, 752 P.2d 86, 91 (Colo. 1988) (“[A] child who is adjudicated a delinquent under the Colorado Children‘s Code stands before the juvenile court not as a convicted criminal but as a child in need of reformation.“).
¶70 The traditional goals of the adult justice system—retribution, deterrence, incapacitation, and rehabilitation, see Graham, 560 U.S. at 71, 130 S.Ct. 2011 —are similarly ill-served by mandatory lifetime sex offender registration for juveniles. As noted, CSORA is not intended to “inflict retribution or additional punishment” on registrants.
¶71 Mandatory lifetime registration for juvenile offenders also fails to achieve deterrence. Juveniles “are less likely to take a possible punishment into consideration when making decisions.” Graham, 560 U.S. at 72, 130 S.Ct. 2011. Indeed, the “likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight” to the possibility of lifetime sex offender registration “is so remote as to be virtually nonexistent.” Roper, 543 U.S. at 572, 125 S.Ct. 1183 (quoting Thompson, 487 U.S. at 837, 108 S.Ct. 2687). This is particularly true of sex offender registration, given that “the significance of the particular punishment and its effects are less likely to be understood by the juvenile than the threat of time in a jail cell. Juveniles are less likely to appreciate the concept of loss of future reputation.” C.P., 967 N.E.2d at 743.
¶72 Finally, given its non-carceral nature, sex offender registration cannot be justified on grounds of incapacitation. But to the extent that registration is designed to serve related public safety goals, those goals do not justify mandatory lifetime registration for juvenile offenders. As noted above, studies have consistently demonstrated that juvenile offenders are unlikely to reoffend, particularly after the first few years following their offense. A uniform determination that certain juvenile offenders are “incorrigible” is thus unsubstantiated. See Graham, 560 U.S. at 73, 130 S.Ct. 2011. Even if a juvenile offender is adjudged to be an ongoing public threat long after that juvenile‘s offense, mandatory lifetime registration would still be “disproportionate because that judgment was made at the outset.” Id.
¶73 For all these reasons, and in light of the objective indicia of societal consensus discussed above, we now hold that mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes cruel and unusual punishment in violation of the
IV. Conclusion
¶74 For the foregoing reasons, we hold that mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes punishment and is cruel and unusual. To be clear: We express no opinion on the legislature‘s ability to mandate lifetime sex offender registration for adult offenders. Nor do we opine on any other scheme requiring juvenile offenders to register as sex offenders. Today we simply hold that the legislature cannot, under the
The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, IN the INTEREST OF T.B., Respondent/Cross-Petitioner
Supreme Court Case No. 19SC690
Supreme Court of Colorado
June 28, 2021
489 P.3d 752
BOATRIGHT, C.J.
CHIEF JUSTICE BOATRIGHT dissents.
CHIEF JUSTICE BOATRIGHT, dissenting.
¶1 T.B. took advantage of the treatment available to him, and he made enormous strides on his path to rehabilitation. I don‘t discount T.B.‘s hard work during treatment, which resulted in high praise from his probation officer. Quite candidly, I believe it is unfair that the Colorado Sex Offender Registration Act (“CSORA“) requires lifetime sex offender registration without an opportunity to deregister for people like T.B., who committed multiple offenses when they were juveniles. But the unfairness of CSORA‘s registration requirement as it applies to T.B. does not render the requirement, on its face, punishment.
¶2 CSORA is a complex statute, imposing various registration requirements on those convicted of offenses involving unlawful sexual behavior. The questions we face today, however, are straightforward: (1) Does lifetime
I. Registration Is Not Punishment
¶3 The U.S. Supreme Court has provided a comprehensive test for determining whether a statute is punitive. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). First, if the legislature intends for a statute to be punitive, the statute should be considered punitive, and a court does not conduct any further inquiry. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). But if the legislature intended the statute to be nonpunitive, a court must consider seven factors to determine whether the statute‘s punitive effect overrides legislative intent. Id. at 92, 97, 123 S.Ct. 1140. We consider those seven factors “in relation to the statute on its face.” Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554.
¶4 Because courts “‘ordinarily defer to the legislature‘s stated intent,’ ‘“only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.’ ” Smith, 538 U.S. at 92, 123 S.Ct. 1140 (citation omitted) (first quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); and then quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Thus, where the legislature, as here, expresses a nonpunitive intent, it is the registrant‘s burden to establish by “the clearest proof” that the effect of the statute is so punitive as to negate the legislature‘s intent.2 Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (quoting United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)).
¶5 Applying this test, divisions of our court of appeals have consistently concluded that CSORA is nonpunitive. See, e.g., People in Int. of J.O., 2015 COA 119, ¶ 30, 383 P.3d 69, 75 (“[W]e decline to depart from Colorado cases holding that sex offender registration under
¶6 And significantly, the U.S. Supreme Court has come to the same conclusion: Registration does not equal punishment. Smith, 538 U.S. at 105, 123 S.Ct. 1140 (“Our examination of the [Alaska Sex Offender Registration] Act‘s effects leads to the determination that respondents cannot show, much less by the clearest proof, that the effects of the law
¶7 Federal circuit courts have concluded the same with regard to various sex offender registration statutes. See, e.g., Millard, 971 F.3d at 1184 (“[W]e conclude that the Appellees have not presented the clearest proof of punitive effect, and that therefore CSORA is not punitive as applied to Appellees.“); United States v. Parks, 698 F.3d 1, 5-6 (1st Cir. 2012) (joining “every circuit to consider the issue” by concluding that the federal Sex Offender Registration and Notification Act (“SORNA“) registration requirements are not so punitive in effect as to constitute punishment); Doe v. Pataki, 120 F.3d 1263, 1285 (2d Cir. 1997); United States v. Young, 585 F.3d 199, 205 (5th Cir. 2009); Vasquez v. Foxx, 895 F.3d 515, 520 (7th Cir. 2018); Doe v. Miller, 405 F.3d 700, 723 (8th Cir. 2005); Hatton v. Bonner, 356 F.3d 955, 967 (9th Cir. 2004) (quoting Smith, 538 U.S. at 92, 123 S.Ct. 1140).
¶8 Same with other state courts. See, e.g., In Int. of Justin B., 419 S.C. 575, 799 S.E.2d 675, 681 (2017); State v. Boche, 294 Neb. 912, 885 N.W.2d 523, 532 (2016); In re J.W., 204 Ill.2d 50, 272 Ill.Dec. 561, 787 N.E.2d 747, 762 (2003); People in Int. of Birkett v. Konetski, 233 Ill.2d 185, 330 Ill.Dec. 761, 909 N.E.2d 783, 799 (2009) (accounting for 543 U.S. 551, 578 (2005)); Helman v. State, 784 A.2d 1058, 1078 (Del. 2001); Kammerer v. State, 322 P.3d 827, 839 (Wyo. 2014); In re J.C., 13 Cal.App.5th 1201, 221 Cal. Rptr. 3d 579, 593 (2017); In re Welfare of J.R.Z., 648 N.W.2d 241, 249 (Minn. Ct. App. 2002) (quoting In re Welfare of C.D.N., 559 N.W.2d 431, 433 (Minn. Ct. App. 1997)).
¶9 Thus, federal and state courts alike have repeatedly recognized that overriding the legislature‘s intent is a heavy burden, See Hendricks, 521 U.S. at 361, 117 S.Ct. 2072, and that the effect of sex offender registration statutes is not so punitive as to meet that burden. See supra ¶¶ 5-8.3 But today, the majority turns its back on decades of precedent from other state courts, federal courts, and even the U.S. Supreme Court. I cannot join them in putting Colorado so far out of the mainstream by finding that sex offender registration is punishment, let alone cruel and unusual punishment. Rather, I would follow the reasoning of the overwhelming number of jurisdictions and conclude that CSORA‘s registration requirement is not so punitive in effect as to override legislative intent and render the registration requirement punishment.
¶10 The framework for determining whether something is punishment is well established by the Mendoza-Martinez seven-factor test. While I agree with the majority on the applicable test, I strongly disagree with the majority‘s application of the factors here. Taking each Mendoza-Martinez factor in turn, I reach the opposite conclusion from the majority.4
A. CSORA Does Not Impose an Affirmative Disability or Restraint
¶11 The majority concludes that CSORA imposes an affirmative disability or restraint on juvenile registrants, thus favoring its determination that CSORA is punitive. Maj. op. ¶¶ 49-51. Although there is no precise definition of “affirmative disability or restraint,” imprisonment has been recognized as “the paradigmatic affirmative disability or restraint.” Smith, 538 U.S. at 100, 123 S.Ct. 1140. Of course, that paradigm has shifted in some ways, but I don‘t view the registration requirements here as clearly rising to the level of affirmative disabilities or restraints. True, registrants must provide personal information through the registration process and update such information as it changes. Maj. op. ¶ 49 (citing
¶12 But CSORA does not prohibit registrants from doing anything; it doesn‘t even require that registrants seek permission before making significant changes (e.g., moving residences, changing employment, or enrolling in a postsecondary education institution). It only requires that the registrants report such changes as they occur. See C.M.D., ¶ 23, 452 P.3d at 138. These reporting requirements are, without a doubt, burdensome and inconvenient to registrants, but they are not so onerous as to transform the registration requirement into punishment. That, in my view, requires more than burdens and inconveniences. Smith, 538 U.S. at 101-02, 123 S.Ct. 1140; Shaw v. Patton, 823 F.3d 556, 568-69 (10th Cir. 2016).
¶13 The division below recognized as much. That is, even though the division departed from a long line of cases by concluding
¶14 The majority concludes that CSORA imposes an affirmative disability or restraint because individual municipalities may impose residency restrictions and employers may discover a juvenile‘s criminal history when evaluating the juvenile as a job candidate.5 Maj. op. ¶¶ 50-51. To be sure, these are undesirable consequences. However, these collateral impacts are not a direct function of CSORA, and even if they were, they do not rise to the level that constitutes affirmative disabilities or restraints. Smith, 538 U.S. at 100, 123 S.Ct. 1140.
¶15 Instead, following the reasoning of the U.S. Supreme Court and the Tenth Circuit, I would find that these collateral consequences of registration, while burdensome, do not impose an affirmative disability or restraint such that they are punitive. See id.; Millard, 971 F.3d at 1183; Shaw, 823 F.3d at 570; see also Doe v. Miller, 405 F.3d at 721. While I recognize that there are challenges associated with residency due to municipal ordinances, these challenges are not punitive disabilities or restraints stemming from CSORA. Rather, they are challenges that stem from the fact that the offender committed delinquent acts of a sexual nature.
B. Registration Has Not Been Historically Regarded as Punishment
¶16 The majority suggests that registration resembles historical, shame-based punishments because widespread dissemination of registrants’ information serves to humiliate them and enables “the use of ‘registry information to harass, victimize, or discriminate against sex offenders.’ ” Maj. op. ¶ 52 (quoting Halbrook, supra at 18). I don‘t doubt that a registrant may feel shamed by having their name listed on the sex offender registry. And of course, sharing information about criminal activity has “always held the potential for substantial negative consequences for those involved in that activity.” Femedeer v. Haun, 227 F.3d 1244, 1251 (10th Cir. 2000) (quoting E.B. v. Verniero, 119 F.3d 1077, 1099 (3d Cir. 1997)). But unlike traditional shame-based punishments, the registration requirement itself does not exist to shame offenders. Instead, the statute‘s purpose is to collect accurate information in the interest of public safety. In other words, CSORA does not put juvenile offenders on display to shame them; instead, CSORA provides “accurate information about a criminal record.” Millard, 971 F.3d at 1182 (quoting Smith, 538 U.S. at 98, 123 S.Ct. 1140). And unlike for adult registrants, that information is not automatically made public for juveniles.6 The U.S. Supreme Court has addressed this very subject.
¶17 In Smith, the Court distinguished sex offender registries from traditional shame-based punishment, reasoning that “[i]n contrast to the colonial shaming punishments ... the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.” 538 U.S. at 99, 123 S.Ct. 1140.7 The Court further recognized that this kind of registration scheme serves a “legitimate governmental objective” that does not amount to punishment, let alone historically recognized punishment. Id. at 98, 123 S.Ct. 1140.
¶18 Finally, I am not convinced that the dissemination of information about juvenile sex offenders takes on a more punitive effect in light of the presumptive confidentiality of most other juvenile adjudications. Cf. Maj. op. ¶ 52. In examining this factor of the Mendoza-Martinez test, we look to “whether CSORA‘s registration requirements are ‘regarded in our history and traditions as a punishment.’ ” Millard, 971 F.3d at 1182 (quoting Smith, 538 U.S. at 97, 123 S.Ct. 1140). A survey of case law overwhelmingly demonstrates that registration has not historically been considered punishment, nor is it commonly regarded as such today. See supra ¶¶ 5-8. Under this lens, I don‘t believe that the age of an offender can singlehandedly transform something that has historically been regarded as non-punishment into punishment.
C. Registration Does Not Promote the Traditional Aims of Punishment: Retribution and Deterrence
¶19 The majority asserts that, because offenders with multiple juvenile adjudications must register regardless of individual risk to reoffend, CSORA is retributive and therefore promotes the traditional aims of punishment. Maj. op. ¶ 53. In my view, the majority departs from U.S. Supreme Court precedent without good cause.
¶20 Retribution is the notion that a criminal sentence must be “directly related to the personal culpability of the criminal offender.” Graham v. Florida, 560 U.S. 48, 71, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (quoting Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987)). Retributive considerations come into play at sentencing when a court imposes incarceration, fines, or probation with specific conditions. Again, the Supreme Court has directly addressed this issue in Smith, where the Court concluded that sex offender registration requirements were not retributive even though the length of the registration requirement was “measured by the extent of the wrongdoing, not by the extent of the risk posed.” Smith, 538 U.S. at 102, 123 S.Ct. 1140; accord Millard, 971 F.3d at 1183. The Court further noted that states are not precluded from making “reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Smith, 538 U.S. at 103, 123 S.Ct. 1140.
¶21 Here, the legislature made a choice to limit mandatory lifetime registration to only those juveniles who have been adjudicated delinquent more than once. See
¶22 The majority also notes that the deterrent purpose of the statute favors a finding that the statute is punitive. Maj. op. ¶ 53. However, deterrence is a component of many regulatory schemes, and therefore, the presence of a deterrent purpose alone does not render a regulatory scheme punishment. Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quoting Hudson, 522 U.S. at 105, 118 S.Ct. 488); Millard, 971 F.3d at 1183. Therefore, I do not find the deterrent purpose of the statute to be persuasive evidence that it is punitive.
¶23 Moreover, I would conclude that the punishment imposed at sentencing promotes retribution and deterrence, but the separate registration requirement does not. In other words, the traditional aims of deterrence and retribution are achieved by our traditional forms of sentencing: delinquent adjudication, probation, parole, out-of-home placement, or commitment to the Department of Human Services.
D. CSORA Is Rationally Connected to Nonpunitive Purposes and Is Not Excessive in Light of Those Purposes
¶24 Relying on a number of studies suggesting juveniles are more amenable to rehabilitation, the majority asserts that mandatory lifetime sex offender registration does not bear a rational connection to CSORA‘s nonpunitive purposes of public safety and aiding law enforcement. Maj. op. ¶¶ 55-57. Furthermore, the majority concludes that the registration requirements for twice-adjudicated juveniles are excessive in light of CSORA‘s nonpunitive purposes. Id. at ¶ 56. In reaching these conclusions, the majority makes policy determinations that are better left for the legislature.
¶25 It is uncontested that CSORA has the nonpunitive purposes of protecting the community and aiding law enforcement officials in investigating sex crimes. Requiring a juvenile twice adjudicated delinquent to register for life bears a rational connection to these purposes. T.B., ¶ 40. The test to evaluate this factor does not ask whether the statute has a “close or perfect fit” with its nonpunitive purposes. Smith, 538 U.S. at 103, 123 S.Ct. 1140. Instead, the statute must only bear a rational connection to those nonpunitive purposes. Not surprisingly, the General Assembly concluded that juveniles who have actually recidivated are more likely to recidivate in the future; thus, it made the decision to require lifetime registration in the interest of community safety and law enforcement. Again, that was a policy decision by the General Assembly.8 Therefore, while I might prefer that the statute have greater flexibility for juveniles, I cannot say that the statute is so irrational that it bears no connection to its nonpunitive purposes.
¶26 I would further conclude that CSORA is not excessive in light of its nonpunitive purposes. An evaluation of whether a statute is excessive “is not an exercise in determining whether the legislature has made the
II. The Legislature Is Best Suited to Address Policy Concerns
¶27 I acknowledge the social science and policy studies explaining that juveniles are more capable of change, and I agree that juveniles’ actions are “less likely to be evidence of ‘irretrievably depraved character.’ ” Maj op. ¶ 55 (quoting Graham, 560 U.S. at 68, 130 S.Ct. 2011). Indeed, T.B. cites persuasive studies addressing reduced rates of juvenile recidivism. And of course, the People cite other studies to instill doubt as to whether juvenile sex offenders are truly less likely to recidivate. However, arguments regarding how likely juveniles are to recidivate, what kind of risk juveniles may pose to community safety, and the impacts of registration on juveniles’ lives should inform the General Assembly‘s policy determinations, not this court‘s evaluation of CSORA‘s constitutionality. Thus, I respect the policy implications cited by my colleagues in the majority, but once again, I believe those policy determinations are for the legislature to make.
III. Miller, Graham, and Roper Are Inapposite
¶28 The U.S. Supreme Court has determined that certain punishments constitute cruel and unusual punishment when applied to juveniles. Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Graham, 560 U.S. at 82, 130 S.Ct. 2011; Roper, 543 U.S. at 578, 125 S.Ct. 1183. These cases are different from the present case in a critical way: They analyzed whether universally recognized punishments— the death penalty and life in prison without parole—constitute cruel and unusual punishment. They did not consider whether a nonpunitive regulatory scheme constituted punishment in the first place. Therefore, I don‘t view them as persuasive in our analysis of whether a nonpunitive statute has an overwhelming punitive effect such that it constitutes punishment.
¶29 The majority disagrees: It relies on three out-of-state cases to suggest that “[a]n offender‘s status as a juvenile is thus relevant not only to whether a punishment is cruel and unusual for purposes of the
¶30 The majority further notes that Miller, Graham, and Roper “establish that children are constitutionally different from adults for purposes of sentencing.” Maj. op. ¶ 28 (quoting Miller, 567 U.S. at 471, 132 S.Ct. 2455). But, in my view, that conclusion is misplaced here. While I recognize that children are constitutionally different for sentencing purposes, registration is not even part of a defendant‘s (or juvenile‘s) sentence in the first place. C.M.D.,
¶31 In any event, our juvenile system already recognizes that children are different for sentencing purposes and accounts for those differences well before any mandatory lifetime sex offender registration requirement is imposed. See
¶32 Furthermore, when establishing registration requirements, the General Assembly recognized that juvenile sex offenders are different from adult sex offenders by making juvenile information less publicly available and permitting deregistration for those juveniles who have been adjudicated delinquent once. See
IV. Conclusion
¶33 I am mindful of the gravity of T.B.‘s situation, and I realize that there are challenges associated with sex offender registration. I will even go so far as to say that lifetime sex offender registration for juveniles, without the possibility of deregistration, is unfair. But something being unfair does not mean it is unconstitutional. Hence, I cannot conclude that T.B. has established, by the clearest proof, that the effects of CSORA‘s registration requirements amount to punishment. In concluding otherwise, I believe the majority usurps the role of the General Assembly by weighing policy considerations and then determining that sex offender registration for juveniles is cruel and unusual punishment. For these reasons, I respectfully dissent.
Notes
1. Whether lifetime sex offense registration for juveniles who have been adjudicated at least twice for unlawful sexual behavior constitutes punishment under the
Eighth Amendment .2. Whether mandatory lifetime sex-offender registration for multiple juvenile offenses is facially cruel and unusual punishment under the
Eighth Amendment .