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
Attorneys for Petitioner/Cross-Respondent: Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado
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 Colorado Sex Offender Registration Act, §§ 16-22-101 to - 115, C.R.S. (2020) ("CSORA"), requires T.B. to register as a sex offender for the remainder of his natural life. Now an adult, T.B. seeks review of the juvenile court's denial of his petition to deregister, arguing that CSORA's mandatory lifetime sex offender registration requirement for offenders with multiple juvenile adjudications violates the Eighth Amendment's prohibition on cruel and unusual punishment. We agree.
¶2 Mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before reaching adulthood.1 But a wealth of social science and jurisprudence confirms what common sense suggests: Juveniles are different. Minors have a tremendous capacity to change and reform. As such, mandating lifetime sex offender registration for juveniles without providing a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the Eighth Amendment. Accordingly, we affirm in part and reverse in part the judgment of the court of appeals and remand with instructions to order a new hearing on T.B.'s petition to deregister.2
¶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. ––––,
¶4 The Jacob Wetterling Act required each state to establish a sex offender registration program that met specified minimum standards. § 170101(a)(1), 108 Stat. at 2038. States that failed to do so within three years of enactment were subjected to a ten-percent reduction in certain federal law enforcement funding. § 170101(f)(1), (2)(A), 108 Stat. at 2042. The registries contemplated by the Act were initially designed as tools for law enforcement agencies. Registration records were "treated as private data" and were kept confidential, although discretionary dissemination of registration information was permitted to the extent necessary to protect the public. § 170101(d), 108 Stat. at 2041-42. Two years later, however, Congress amended the Jacob Wetterling Act to mandate disclosure of sex offender registration information as necessary to protect the public. See Megan's Law, Pub. L. No. 104-145, sec. 2, § 170101(d)(2), 110 Stat. 1345, 1345 (1996).
¶5 In 2006, Congress replaced the Jacob Wetterling Act with the Sex Offender Registration and Notification Act, Pub. L. No. 109-248, §§ 101-55, 120 Stat. 587, 590-611 (originally codified at 42 U.S.C. §§ 16901 -62, transferred to 34 U.S.C. §§ 20901 -62) ("SORNA").4 Like the Jacob Wetterling Act, SORNA requires each state to maintain a sex offender registry. 34 U.S.C. § 20912(a) (2018). But SORNA substantially expands the scope of information included on each registry to encompass a wide range of personal information about each registrant, including the registrant's name, address, license plate number and description of any vehicle, a physical description of the registrant, a current photograph and photocopy of a valid form of identification, a set of fingerprints and palm prints, a DNA sample, and information regarding the underlying offense. 34 U.S.C. § 20914 (2018). Each state must make this information available online to the public, with some limited mandatory and discretionary exclusions. 34 U.S.C. § 20920 (2018).
¶6 SORNA also establishes a comprehensive national registration system, known as the National Sex Offender Registry, 34 U.S.C. § 20921 (2018), and a community notification program, 34 U.S.C. § 20923 (2018). SORNA required each state to implement a compliant sex offender registration program within three years of enactment. 34 U.S.C. § 20926(a)(1) (2018). Similar to the Jacob Wetterling Act, states that failed to substantially comply were subjected to a ten-percent reduction in certain federal law enforcement funding. 34 U.S.C. § 20927 (2018).
¶7 Notably, SORNA covers a broader range of offenders by employing a three-tier offender classification, 34 U.S.C. § 20911(2) - (4) (2018), and by expanding the definition of "sex offense" to encompass a greater number of offenses, § 20911(5), (7). And unlike the Jacob Wetterling Act, under which the states had discretion regarding "whether and how to register juveniles," Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 22 (2013), SORNA expressly applies to individuals who were "adjudicated delinquent as a juvenile" for certain offenses and who were at least fourteen years old at the time of the offense, 34 U.S.C. § 20911(8).
¶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.
¶9 The General Assembly enacted Colorado's first sex offender registry in 1991. See ch. 69, sec. 1, § 18-3-412.5, 1991 Colo. Sess. Laws 393, 393-95. Under this original scheme, offenders were required to register only upon conviction of certain delineated sex offenses committed against children. Id. at 393.5 Notably, the registry was confidential; it was not "open to inspection by the public or any person other than any law enforcement officer." Id. at 394.
¶10 This changed in 2002 with the enactment of CSORA, a comprehensive registration and community notification scheme. See ch. 297, sec. 1, §§ 16-22-101 to -114, 2002 Colo. Sess. Laws 1157, 1157-78.6 CSORA requires certain offenders to register as sex offenders annually and in person in each jurisdiction in which the offender resides. See § 16-22-108(1)(a)(II), (1)(b), C.R.S. (2020).7 Registrants are required to disclose, among other things, their name (including any aliases), date of birth, address, and place of employment; the name and address of any postsecondary education institution at which they are enrolled; and a description, vehicle identification number, license plate number, and registration number of each vehicle they own. § 16-22-109(1), C.R.S. (2020). Registrants must update this information within five days of any change to the individual's residence, place of employment, enrollment at a postsecondary education institution, volunteer work location, email address, or online identity, among other things. § 16-22-108(3). And as part of the annual registration process, registrants must "sit for a current photograph" and provide an updated "set of fingerprints to verify the [registrant's] identity." § 16-22-108(6).
¶11 CSORA expressly applies to juveniles who have been adjudicated delinquent for unlawful sexual behavior. § 16-22-103(4), C.R.S. (2020). Juvenile offenders are subject to the same registration and community notification requirements as adult offenders with one exception: The Colorado Bureau of Investigation ("CBI") may not publish juvenile information, including a juvenile's status as a sex offender, on its website. See § 16-22-111(1), (1.5) C.R.S. (2020). That said, local law enforcement agencies may post such information if the juvenile has a second or subsequent adjudication involving unlawful sexual behavior or a crime of violence, § 16-22-112(2)(b)(III), C.R.S. (2020), or "was adjudicated for an offense that would have been a felony if committed by an adult and has failed to register as required," § 16-22-112(2)(b)(IV).
¶12 Moreover, upon request, local law enforcement agencies must release registry information, including juvenile information, to any person living in the agency's jurisdiction. § 16-22-112(2)(a). Local agencies also have discretion to release such information to any person living outside the agency's jurisdiction. § 16-22-112(3)(b). In addition, juvenile information is included in "a statewide central registry," § 16-22-110(1), C.R.S. (2020), which is available upon request and includes, at a minimum, each juvenile's name, address, date of birth, photograph, and underlying offense, § 16-22-110(6)(c), (f). Finally, "private, third-party businesses have emerged that republish registrants' personal information on the internet with no limitation or regulation on republication." Millard v. Camper,
¶13 Although the registration requirement applies indefinitely, a court may, upon petition of removal by a registrant, enter an order discontinuing registration. See § 16-22-113(1), C.R.S. (2020). In determining whether to enter such an order, the sole criterion is "whether the person is likely to commit a subsequent offense of or involving unlawful sexual behavior." § 16-22-113(1)(e). The court shall base its determination on recommendations from the person's probation or parole officer, treatment provider, the prosecuting attorney, and the presentence investigation report, and shall consider statements submitted by the victim. Id.
¶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 § 16-22-113(3)(c) (excluding "[a]ny adult who has more than one conviction or adjudication for unlawful sexual behavior"); § 16-22-103(4) ("[A] person may petition the court for an order to discontinue the duty to register ... only if the person has not subsequently received a disposition for, been adjudicated a juvenile delinquent for, or been otherwise convicted of any offense involving unlawful sexual behavior."). Such individuals are subject to the registration requirements "for the remainder of their natural lives." § 16-22-113(3). This is true regardless of whether the underlying offenses were committed when the registrant was a juvenile or an adult. See id.; § 16-22-103(4).
¶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 cases. At an evidentiary hearing, T.B. and his former probation officer testified regarding T.B.'s rehabilitation and the impact of registration on his life. T.B.'s probation officer testified that T.B. did a "phenomenal job" at the treatment facility. She described T.B. as a "very compassionate" and "empathetic young man," who "struggled a lot with his inner demons" when he was younger and whose juvenile offenses were in part the result of his parents' negative influence, including their gang involvement. She explained that T.B. "took advantage of th[e] opportunity" provided by his second treatment and "has changed from the person he was at eleven to the person he is today." In short, she said that T.B. "has made a complete turnaround from the time that he was eleven years old." But she said that T.B. "can't seem to get a better job" or an apartment "because of the scrutiny that he's under when he applies." As T.B. himself explained, he was working in management at a fast-food restaurant and was being considered for a promotion, but his annual registration obligation was "holding [him] back" from career advancement.
¶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 section 16-22-113 given T.B.'s 2005 adjudication. It requested additional briefing on the issue; when both parties failed to submit such briefing, the juvenile court denied T.B.'s petition to discontinue registration in the 2001 case.
¶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.,
¶19 A split division of the court of appeals reversed, concluding that CSORA's juvenile mandatory lifetime registration requirement constitutes punishment for Eighth Amendment purposes. People in Int. of T.B.,
¶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.,
¶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 Eighth Amendment. Id. at ¶ 49.8
¶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,
¶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,
¶24 The People petitioned this court for certiorari review, and T.B. cross-petitioned for certiorari review. We granted both petitions.9
¶25 We review the constitutionality of statutes de novo. Lucero v. People ,
¶26 The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
U.S. Const. amend. VIII.10 At its core, the Eighth Amendment "guarantees individuals the right not to be subjected to excessive sanctions." Roper v. Simmons ,
¶27 Eighth Amendment challenges generally fall into one of two categories: (1) challenges to the excessiveness of a particular punishment for a particular offender, see id. at 59,
¶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 Eighth Amendment when applied to juveniles. Roper established that the death penalty cannot be constitutionally applied to juvenile offenders,
¶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,
¶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,
¶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 ,
¶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,
¶33 In light of these distinctive attributes of youth, mandatory punishments that are constitutional when applied to adult offenders can violate the Eighth Amendment when applied to juveniles. "Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at 476,
¶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,
¶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 Eighth Amendment. See, e.g., People in Int. of C.M.D.,
¶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.,
¶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.
¶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
¶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.,
¶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.,
¶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.,
¶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 Eighth Amendment.
¶43 We first address whether mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes punishment for purposes of the Eighth Amendment, ultimately concluding that it does. We next address whether that punishment is cruel and unusual, and similarly answer that question in the affirmative. Accordingly, we hold that CSORA violates the Eighth Amendment in imposing mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications.14
¶44 Under Mendoza-Martinez, courts apply a two-part intent-effects test to determine whether a statute is punitive. See
¶45 Throughout the statutory scheme, the General Assembly indicated that it did not intend for CSORA to be punitive. Indeed, section 16-22-112(1) explicitly states that CSORA is not intended and should not "be used to inflict retribution or additional punishment on any person." See also § 16-22-110(6)(a) (same). CSORA establishes a comprehensive registration and community notification program with two distinct aims: ensuring community protection15 and aiding law enforcement, including by facilitating communication between the CBI, local law enforcement, and other agencies.16
¶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." § 16-22-103(5)(a) (emphasis added). This language does not establish that the General Assembly intended CSORA to be punitive, but it does suggest that the General Assembly was aware that the registration scheme may, at times and as applied to certain juvenile offenders, be punitive in effect. That said, this single reference to punitiveness, standing alone, does not override the statutory scheme as a whole, which reflects a focus on community protection and aiding law enforcement. Accordingly, we cannot conclude that the General Assembly intended CSORA to be punitive. We therefore turn to whether, notwithstanding the legislature's nonpunitive intent, CSORA is punitive in effect.
¶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—retributiоn 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,
¶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 § 16-22-103(4). But the remaining factors lead us to conclude that mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes punishment for purposes of the Eighth Amendment.
¶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 §§ 16-22-108(1)(a)(II), (1)(b), 16-22-109(1). They must also update their information within five days of certain life events or changes, including any change in address. § 16-22-108(1)(c), (3). Sex offenders must bear the costs of annual registration, including the cost of an updated photograph and a set of fingerprints, § 16-22-108(6), as well as a registration fee, which may be imposed at each local law enforcement agency's discretion, § 16-22-108(7)(a). Failure to comply with any of the applicable registration requirements can subject an offender to criminal sanctions. § 16-22-103(6) ; § 18-3-412.5, C.R.S. (2020). These registration requirements and recurring costs become all the more onerous when applied to a juvenile offender whose youth typically means that he will be subject to such requirements for "more years and a greater percentage of his life ... than an adult offender." Graham,
¶50 Additionally, though Colorado imposes no statewide residency restrictions on sex offenders, individual municipalities may impose such restrictions. See C.M.D., ¶ 23,
¶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. § 16-22-110(6)(b). CSORA thus provides an employer with access to a person's juvenile criminal history—information that otherwise would not be publicly available. See generally § 19-1-304(1), C.R.S. (2020) (providing for only limited disclosure of court and other records in juvenile delinquency proceedings); Chief Justice Directive 05-01, Public Access to Court Records, § 4.60(b) (amended Oct. 18, 2016) (providing that court records in juvenile delinquency cases are not accessible to the public absent court order). Moreover, several Colorado municipalities restrict the availability of certain business licenses based on whether the applicant is on the sex offender registry.19
¶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 ,
¶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 past conduct without regard to the threat—or lack thereof— that the juvenile currently poses. See id. at 109,
¶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 ,
¶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 (collecting studies). 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) (collecting studies). 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 criminal offenses; and does not bear a rational relationship to—and is excessive in light of—its nonpunitive purposes. Because these punitive effects outweigh the General Assembly's nonpunitive intent, we conclude that mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications constitutes punishment for purposes of the Eighth Amendment.20 We turn now to whether such punishment is cruel and unusual.
¶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 ,
¶60 Courts look to objective indicia of societal consensus for evidence of the "evolving standards of decency" that animate the Eighth Amendment. Atkins,
¶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 provide for automatic termination of registration within a set number of years,25 while ten allow juvenile offenders to petition to remove their names from the registry after an allotted time.26
¶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,
¶63 "Community consensus, while ‘entitled to great weight,’ is not itself determinative of whether a punishment is cruel and unusual." Graham,
¶64 After considering each of these factors, we conclude that CSORA violates the Eighth Amendment's prohibition on cruel and unusual punishments in requiring mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications.
¶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.,
¶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 themselvеs 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.,
¶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,
¶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,
¶70 The traditional goals of the adult justice system—retribution, deterrence, incapacitation, and rehabilitation, see Graham ,
§ 16-22-112(1). But to the extent that registration does inflict retribution, a retributive or punitive rationale does not support imposing such a severe penalty on juvenile offenders; because the " ‘heart of the retribution rationale’ relates to an offender's blameworthiness, ‘the case for retribution is not as strong with a minor as with an adult.’ " See Miller,
¶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,
¶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,
¶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 Eighth Amendment.
¶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 Eighth Amendment, mandate lifetime sex offender registration for offenders with multiple juvenile adjudications without providing a mechanism for individualized assessments or an opportunity to deregister upon a showing of rehabilitation. We thus affirm in part and reverse in part the judgment of the court of appeals, and remand with instructions to order a new hearing on T.B.'s petition to deregister.
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 sex offender registration constitute punishment? (2) If so, is that punishment cruel and unusual? Because I cannot answer the first question affirmatively, I cannot join my colleagues in the majority. In my view, registration is not punishment, and therefore, registration cannot constitute cruel and unusual punishment. In addition, T.B. has not met the high standard of establishing that the effects of the registration requirement are punitive by the "clearest proof." And while the majority raises valid concerns about the fairness of sex offender registration as it applies to juveniles, those concerns are for the General Assembly to address.1 Accordingly, I respectfully dissent.
¶3 The U.S. Supreme Court has provided a comprehensive test for determining whether a statute is punitive. Kennedy v. Mendoza-Martinez,
¶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,
¶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.,
¶6 And significantly, the U.S. Supreme Court has come to the same conclusion: Registration does not equal punishment. Smith,
¶7 Federal circuit courts have concluded the same with regard to various sex offender registration statutes. See, e.g., Millard v. Camper,
¶8 Same with other state courts. See, e.g., In Int. of Justin B.,
¶9 Thus, federal and state courts alike have repeatedly recognized that overriding the legislature's intent is a heavy burden, see Hendricks,
¶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
¶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,
¶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,
¶13 The division below recognized as much. That is, even though the division departed from a long line of cases by concluding that T.B.'s registration requirement constituted punishment, it nonetheless recognized that CSORA did not impose an affirmative disability or restraint. People in Int. of T.B.,
¶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,
¶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. ("The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences."); Millard,
¶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 Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 18 (2013) ). I don't doubt that a rеgistrant 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,
¶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."
¶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,
¶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,
¶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 § 16-22-103(4), C.R.S. (2020). By carving out a specific category of juvenile offenders for lifetime registration, CSORA imposes registration requirements on those individuals regardless of their specific risk to reoffend. Our General Assembly chose to increase the length of the registration requirements for juveniles with multiple adjudications based on the extent of the wrongdoing. The legislature has the authority to make these kinds of categorical judgments so long as they are reasonably related to the statute's nonpunitive purposes and consistent with its regulatory objectives. See Smith,
¶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,
¶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.
¶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 ("It cannot be disputed that there is a rational connection between CSORA's registration requirement and public safety."). The test to evaluate this factor does not ask whether the statute has a "close or perfect fit" with its nonpunitive purposes. Smith,
¶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 best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective." Id. at 105,
¶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 ,
¶28 The U.S. Supreme Court has determined that certain punishments constitute cruel and unusual punishment when applied to juveniles. Miller v. Alabama,
¶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 Eighth Amendment, but also to whether a statutory scheme is punitive for purposes of the Eighth Amendment." Maj. op. ¶ 41 (emphasis added). While I fully appreciate why a certain punishment—life in prison without the possibility of parole—may become cruel and unusual when applied to juveniles, I cannot make the step in logic that the age of the registrant alone can render something punishment when it was not punishment before. See J.C.,
¶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,
¶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 § 19-2-905, C.R.S. (2020) (requiring presentence investigation to address a number of factors, including the child's family, peer relationships, drug use, and criminal history); Flakes v. People,
¶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 §§ 16-22-103(4), - 111(1), (1.5), C.R.S. (2020). The General Assembly draws similar distinctions among adult sex offenders by not allowing certain adult offenders to deregister (e.g., sexually violent predators). These distinctions, however, are policy decisions that only the legislature has the authority to make. Thus, while I agree that children are constitutionally different, I don't agree that such distinctions can transform a nonpunitive statute into a punitive one, especially where the legislature has already made a conscious policy decision and clarified that the purpose of registration is community safety, not punishment.
¶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.
1 Though this case concerns mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications, we use "mandatory lifetime sex offender registration for juveniles" or similar phrases in this opinion as shorthand.
2 Shortly after the court finalized and voted on this opinion, the People submitted supplemental authority notifying the court that the General Assembly passed House Bill 21-1064 and sent it to the Governor on June 21, 2021. Among other things, House Bill 21-1064 amends CSORA to eliminate mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications. The Governor signed the bill into law on June 24, but it does not take effect until September 1. Because the court's opinion was finalized and because T.B.'s claims are not moot under current law, the court has elected to release this opinion to ensure that T.B. receives a new hearing on his petition to deregister immediately, rather than wait until September 1 for the amended law to take effect.
3 A handful of states, including California and Arizona, established rudimentary sex offender registration programs as far back as 1947. See Lori McPherson, The Sex Offender Registration and Notification Act (SORNA) at 10 Years: History, Implementation, and the Future, 64 Drake L. Rev. 741, 746-48 (2016).
4 SORNA is encompassed within an overarching statutory scheme generally aimed at protecting children from sexual exploitation, violent crime, and child pornography. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (codified as amended in scattered sections throughout titles 8, 18, 21, and 34 U.S.C.).
5 Because the original scheme applied only to those "convicted" of certain offenses, it did not encompass juveniles adjudicated delinquent for sex offenses. See People v. Corson,
6 In 2006, the General Assembly amended CSORA to add a provision, now codified at section 16-22-115, C.R.S. (2020), providing assistance from the Colorado Bureau of Investigation to local law enforcement agencies in apprehending sex offenders who fail to register. See ch. 219, sec. 1, § 16-22-115, 2006 Colo. Sess. Laws 1005, 1005.
7 Certain offenders must register every three months. See § 16-22-108(1)(d)(I).
8 Because it concluded that CSORA's mandatory lifetime registration requirement constitutes punishment, the division declined to address T.B.'s argument that CSORA creates an impermissible irrebuttable presumption and therefore deprives him of substantive due process. Id. at ¶ 53.
9 We granted review of the following issues:
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.
10 The Eighth Amendment is applicable to the states through the Fourteenth Amendment. See Robinson v. California ,
11 Though we hold that mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications is unconstitutional, we do not perceive our holding as conflicting with the Tenth Circuit's decision in Millard . That case involved an as-applied challenge to CSORA brought by three registered sex offenders, only one of whom was a juvenile at the time of his underlying offense.
12 The South Carolina Supreme Court recently determined that mandatory lifetime sex offender registration for any offender violates due process if there is not an opportunity to petition to deregister after judicial review. See Powell v. Keel, No. 2019-001063, ––– S.C. ––––, ––––, ––– S.E.2d ––––,
13 The Ohio Supreme Court had already determined sex offender registration to be punitive in a prior case. See C.P.,
14 Because the issue is not before us, we decline to opine on the constitutionality of mandatory lifetime sex offender registration for an offender who was adjudicated delinquent for a sex offense as a juvenile and was subsequently convicted of one or more sex offenses as an adult.
15 See, e.g., § 16-22-110(6)(a) ("The general assembly hereby recognizes ... the publiс's need to adequately protect themselves and their children from [registered sex offenders] ...."); § 16-22-112(1) (explaining "that persons convicted of offenses involving unlawful sexual behavior have a reduced expectation of privacy because of the public's interest in public safety" and "that the public must have access to" the registry "to allow them to adequately protect themselves and their children from these persons").
16 See, e.g., § 16-22-106(1)(b), (2)(b), (3)(a)(I), (3)(a)(II), (3)(c) (requiring communication between various departments, the CBI, and local law enforcement agencies); § 16-22-110(2), (3.5) (requiring the statewide registry to provide certain information to all criminal justice agencies in the state); § 16-22-115 (providing that "the [CBI] shall share information with local law enforcement agencies[,] ... use analytical resources[,] ... [and] review and analyze all available information" to assist local law enforcement agencies in apprehending a sex offender who has failed to register).
17 Many municipalities across Colorado have imposed residency restrictions, albeit to varying degrees of stringency. See, e.g., Alamosa Code of Ordinances ch. 11, art. III, § 11-54; Alma Mun. Code §§ 16-1-90, 16-19-10; Arvada Code of Ordinances ch. 102, art. II, div. 6, § 102-181; Arvada Land Dev. Code §§ 3-1-3-3, 11-3-3-1; Bennett Mun. Code § 16-2-210; Black Hawk Mun. Code ch. 10, art. XIV, §§ 10-261 to 10-265; Brighton Mun. Code §§ 5-90-10, 5-90-70; Brighton Land Use & Dev. Code § 11.01; Broomfield Mun. Code §§ 17-04-130, 17-04-202; Brush Mun. Code § 16-14-20; Commerce City Mun. Code ch. 5, art. XVIII, § 5-302; Commerce City Mun. Code ch. 12, art. VI, § 12-6010; Commerce City Land Dev. Code art. V, div. 2, § 21-5238; Commerce City Land Dev. Code art. XI., div. 2, § 21-11200, amended by Commerce City, Ordinance No. 2266 (Feb. 15, 2021); Englewood Code of Ordinances §§ 7-3-1 to 7-3-6; Federal Heights Code of Ordinances ch. 70, art. I, § 70-4; Grand Junction Mun. Code § 21.04.020; Greeley Mun. Code tit. 14, ch. 12, §§ 14-381 to -386; Lafayette Code of Ordinances §§ 26-8-1, 26-14-11; Louisville Code of Ordinances §§ 17.08.150, 17.16.140; Littleton City Code §§ 3-23-2, 10-1-2; Superior Mun. Code § 16-1-70; Thornton Code of Ordinances ch. 18, art. IV, div. 5, § 18-228; Thornton Code of Ordinances ch. 18, art. XI, § 18-901; Westminster Code of Ordinances §§ 6-17-1 to -6, 11-4-6; Wheat Ridge Code of Ordinances ch. 26, art. I, § 26-123.
18 See, e.g., Ga. Code Ann. § 42-1-15 (2021); Iowa Code § 692A.114 (2021); Okla. Stat. tit. 57, § 590 (2021).
19 See, e.g., Commerce City Mun. Code ch. 9., art. III, div. 7, § 9-3705 (license to operate a massage business must be denied if the applicant is required to register as a sex offender); Lakewood Mun. Code § 5.41.080 (license to operate non-alcoholic dance club must be denied if applicant is required to register as a sex offender); Yuma Mun. Code § 9.24.020 (registration as a commercial solicitor must be denied if the applicant is required to register as a sex offender).
20 In so concluding, we overrule C.M.D.,
21 See Fla. Stat. § 943.0435(1)(b), (1)(h)(1)(d), (11) (2021) ; Mass. Gen. Laws ch. 6, §§ 178C, 178G (2021); Minn. Stat. § 243.166 (2021) ; Mont. Code Ann. §§ 46-23-502(10), -506 (2021); N.D. Cent. Code § 12.1-32-15 (2021); Tenn. Code Ann. §§ 40-39-202, -207(g)(2) (2021); Va. Code Ann. §§ 9.1-901(A), -910(A) (2021); Wyo. Stat. Ann. §§ 7-19-301(a)(iii), -304 (2021); see also Conn. Gen. Stat. §§ 54-250 to -261 (2021) (juveniles neither expressly included in nor excluded from registration requirements).
22 See Alaska Stat. §§ 12.63.010(a), 100(3) (2021) ; D.C. Code §§ 22-4001(3)(A), 16-2318 (2021) ; Ga. Code Ann. § 42-1-12(a)(10)(C) (2021); Haw. Rev. Stat. § 846E-1 (2021); Ky. Rev. Stat. Ann. § 17.510(6)(b) (West 2021); Me. Stat. tit. 34-A, § 11203 (2021); N.M. Stat. Ann. §§ 29-11A-3, 32A-2-18 (2021) ; N.Y. Correct. Law § 168-a (McKinney 2021), N.Y. Fam. Ct. Act § 380.1 (McKinney 2021) ; W. Va. Code §§ 15-12-2(b), 49-4-103 (2021).
23 See Ala. Code § 15-20A-28(a) (2021) ; Del. Code Ann. tit. 11, § 4123(c)(1) (2021); Fla. Stat. § 943.0435(1)(h)(1)(d) (2021) ; Ind. Code §§ 11-8-8-4.5(b), -7 (2021); La. Stat. Ann. § 15:542(A)(3) (2020); Md. Code Ann., Crim. Proc. § 11-704.1(b) (West 2021); Mich. Comp. Laws §§ 28.722(a), 28.723 (2021) ; Miss. Code. Ann. § 45-33-25 (2021) ; Mo. Rev. Stat. § 589.400(6) (2021) ; Nev. Rev. Stat. § 62F.300 (2021); Ohio Rev. Code Ann. § 2152.86(A) (West 2021); Okla. Stat. tit. 10A, §§ 2-8-102, -104 (2021); 42 Pa. Cons. Stat. §§ 9799.12, 9799.13 (2021); S.D. Codified Laws § 22-24B-2 (2021) ; Vt. Stat. Ann. tit. 13, § 5401(15)(c) (2021); see also 34 U.S.C. § 20911(8).
25 Ariz. Rev. Stat. Ann. § 13-3821(D) (2021); Ark. Code Ann. § 9-27-356(j) (2021); Cal. Penal Code § 290.008(d)(1)-(3) (West 2021); Md. Code Ann., Crim. Proc. § 11-704.1(d) ; N.H. Rev. Stat. Ann. §§ 169-B:4(IV)(d), B:19 (2021); N.C. Gen. Stat. § 14-208.30 (2020) ; 11 R.I. Gen. Laws § 11-37.1-4(j) (2020) ; Tex. Code Crim. Proc. Ann. art. 62.101(c)(1) (West 2019); Utah Code Ann. § 77-41-105(3)(a) (West 2021); see also Ala. Code § 15-20A-28(b) -(c) (2021) (providing that registration automatically terminates after ten years for some juvenile offenders and that other offenders are allowed to petition to deregister after twenty-five years); cf. Nev. Rev. Stat. § 62F.340 (2021) (hearing automatically held when a juvenile offender reaches age twenty-one to determine whether the offender should be deregistered); Okla. Stat. tit. 10A, § 2-8-108 (2021) (removing juvenile offender from the registry at age twenty-one unless the district attorney successfully petitions to have the offender moved to the adult registry); Idaho Code § 18-8410 (2021) (same) ; In re Registrant J.G.,
26 See 730 Ill. Comp. Stat. 150/3-5 (2021) ; Mich. Comp. Laws § 28.728c (2021) ; Miss. Code Ann. § 45-33-47(2)(g), (3) (2021) ; Mo. Rev. Stat. § 589.401(11), (13) (2021) ; Ohio Rev. Code Ann. § 2152.86(D) (West 2021); Or. Rev. Stat. § 163A.130 (2020); 42 Pa. Cons. Stat. § 9799.17 (2021); S.D. Codified Laws § 22-24B-17 (2021) ; Wash. Rev. Code § 9A.44.143 (2021); see also Powell, ––– S.C. at ––––, ––– S.E.2d ––––,
27 See, e.g., § 16-22-110(6)(a) (noting that the sex offender registry is not intended to and should not be "used to inflict retribution or additional punishment on any person convicted of unlawful sexual behavior").
28 T.B. has faced many of these issues. As his probation officer testified at the first hearing to discontinue registration, T.B.'s sex offender registration has held him back from finding housing and has limited his employment options.
1 As the majority notes, "[s]hortly after the court finalized and voted on this opinion, the People submitted supplemental authority notifying the court that the General Assembly passed House Bill 21-1064 and sent it to the Governor on June 21, 2021. Among other things, House Bill 21-1064 amends CSORA to eliminate mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications. The Governor signed the bill into law on June 24, but it does not take effect until September 1." Maj. op. ¶ 2 n.2. Therefore, I аgree that releasing these opinions is necessary.
2 I agree with the majority when it concludes that the legislature did not intend for CSORA to be punitive. Maj. op. ¶ 46. The statute clearly indicates that "it is not the general assembly's intent that the information be used to inflict retribution or additional punishment." §§ 16-22-110(6), -112(1), C.R.S. (2020). Accordingly, I focus my analysis on the effects prong of the Mendoza-Martinez test.
3 I recognize that my dissent consists, in large part, of string cites, but that is emblematic of the fact that the case law overwhelmingly demonstrates that registration requirements are not punishment. It is irrefutable that courts across the country—including the U.S. Supreme Court—have analyzed registration requirements under the exact same framework we apply today, and they have almost universally concluded that registration is not punishment.
4 Because I agree with the majority's analysis of scienter, see maj. op. ¶ 48, and whether the underlying conduct that triggers registration is a crime, see id. at ¶ 54, I do not address those factors here.
5 Employers and landlords can access the records of only those juveniles twice adjudicated delinquent for unlawful sexual behavior, and only if the locale where the juvenile is registered chooses to make such information available, or if the employer or landlord affirmatively requests such information.
6 The Colorado Bureau of Investigation may not publish juvenile information on its website. See § 16-22-111(1), (1.5), C.R.S. (2020). Local law enforcement agencies, however, may choose to post such information for juveniles twice adjudicated delinquent, and residents of a locale may request such records from law enforcement. § 16-22-112(2)(b).
7 The Court discussed traditional shame-based punishments, which required offenders to "stand in public with signs cataloguing their offenses," or at times, making such labels permanent by branding individuals with a label indicating their crime. Smith,