in Interest of T.B

2019 COA 89

• Court: Colorado Court of Appeals
• Decided: June 20, 2019
• Docket: 16CA1289, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY June 20, 2019

2019COA89

No. 16CA1289, People in Interest of T.B. — Criminal Law — Sex Offender Registration — Juveniles — Petition for Removal from Registry; Constitutional Law — Eighth Amendment — Cruel and Unusual Punishments

The Colorado Sex Offender Registration Act (CSORA), sections

16-22-101 to -115, C.R.S. 2018, requires that juveniles who are

twice adjudicated for unlawful sexual behavior must register as sex

offenders for life. In this Eighth Amendment challenge to CSORA, a

division of the court of appeals, with one judge dissenting, holds

that CSORA’s lifetime registration requirement is a punishment as

it applies to juveniles.

Based on this conclusion, the division remands the case to the

juvenile court for further proceedings to take further evidence and

make findings on the issue of whether CSORA’s lifetime registration requirement for juveniles constitutes cruel and unusual

punishment. COLORADO COURT OF APPEALS 2019COA89

Court of Appeals No. 16CA1289 City and County of Denver Juvenile Court No. 01JD1407 Honorable D. Brett Woods, Judge Honorable Karen M. Ashby, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of T.B.,

Juvenile-Appellant.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE WELLING Harris, J., concurs Webb, J., dissents

Announced June 20, 2019

Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Johnson & Klein, PLLC, Gail K. Johnson, Katherine C. Steefel, Boulder, Colorado, for Juvenile-Appellant

Elizabeth Logemann, Denver, Colorado, for Amicus Curiae Colorado Juvenile Defender Center and Children’s Rights ¶1 The Colorado Sex Offender Registration Act (CSORA), sections

16-22-101 to -115, C.R.S. 2018, requires that juveniles who are

twice adjudicated for unlawful sexual behavior must register as sex

offenders for life. T.B. is one of those juveniles. He now appeals the

denial of his petition to deregister, arguing that the statute’s

requirement that he register as a sex offender for life for offenses

that he committed as a juvenile constitutes cruel and unusual

punishment. This court has repeatedly rejected similar claims,

each time on the basis that sex offender registration is not a

punishment. We, however, conclude that the lifetime registration

requirement arising from juvenile adjudications constitutes a

punishment and, therefore, remand the case for further proceedings

to determine whether the punishment is unconstitutional.

I. Background

¶2 In 2001, when T.B. was twelve years old, he was adjudicated

for unlawful sexual contact, a class 1 misdemeanor if committed by

an adult. In 2005, he pleaded guilty to sexual assault. Following

the 2005 adjudication, he successfully completed probation and

offense specific treatment. He has no other criminal record.

1 ¶3 In 2010, T.B. filed a pro se petition to discontinue sex offender

registration in both cases. By checking a box on the petition, he

represented that “I have successfully completed the terms and

conditions of my sentence related to that offense. I have not been

subsequently convicted or adjudicated a juvenile delinquent for any

offense involving unlawful sexual behavior.”

¶4 Following an evidentiary hearing, the juvenile court found that

T.B. “has earned the right not to have to register” and “he is not a

risk to sexually reoffend.” Then the court granted the petition as to

the 2005 case but concluded that discontinuing registration was

not permitted in the earlier case because T.B. had a subsequent sex

offense adjudication (i.e., the 2005 case).

¶5 Almost five years later, now twenty-six years old and

represented by counsel, T.B. filed a second petition to discontinue

registration. This time he argued that lifetime registration violated

due process and constituted cruel and unusual punishment.

Again, the juvenile court held a hearing. In a written order relying

primarily on People in Interest of J.O., 2015 COA 119, the court

rejected T.B.’s constitutional arguments and denied the petition.

¶6 T.B. appeals that denial.

2 II. Procedural Bar

¶7 Relying on cases decided under Crim P. 35(c), the People

assert that T.B.’s constitutional arguments are procedurally barred.

We disagree.

A. Successiveness

¶8 Claims that could have been raised in a prior appeal are

usually barred as successive. See Dunlap v. People, 173 P.3d 1054,

1062 (Colo. 2007) (citing Crim. P. 35(c)); People v. Vondra, 240 P.3d

493, 495 (Colo. App. 2010) (“Defendant could have challenged the

district court’s factual findings and its conclusion that counsel was

not ineffective on direct appeal, but chose not to do so.”). But we

reject the Attorney General’s successiveness argument for two

reasons.

¶9 First, the Attorney General’s successiveness argument

assumes that cases decided under Crim. P. 35(c) should control

this case. Unsurprisingly, such cases apply the mandate of Crim.

P. 35(c)(3)(VI)-(VII) (“The court shall deny any claim that was raised

and resolved in a prior appeal” or “could have been presented in an

appeal previously brought.”). But T.B. never sought relief under

3 Crim. P. 35(c). Nor, for that matter, do we see how he could have

taken this approach in pursuit of discontinuing registration.

¶ 10 Second, while it is accurate that the juvenile court twice

denied T.B.’s petition to discontinue the registration requirement

and T.B. did not appeal from the first denial, the Attorney General’s

assertion that “[n]othing legal or factual has changed since the first

ruling” is only partly true. The factual basis for seeking to

discontinue registration was the same in both petitions — T.B. no

longer posed a risk to sexually reoffend. But, as detailed in Part

III.B.1.a below, the legal landscape involving juvenile sentencing in

general and lifetime registration in particular has evolved

substantially since T.B.’s first petition in 2010. See, e.g., Miller v.

Alabama, 567 U.S. 460, 479 (2012) (extending Graham v. Florida,

560 U.S. 48 (2010), and holding “that the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders” convicted of homicide);

Graham, 560 U.S. at 73 (observing that just because a juvenile

defendant “posed an immediate risk” at one point in his young life

does not mean that he will “be a risk to society for the rest of his

life”); State in Interest of C.K., 182 A.3d 917, 932-33 (N.J. 2018)

4 (collecting cases issued since 2012 where state courts of last resort

have held that lifetime registration and notification requirements for

juvenile sex offenders are unconstitutional).

¶ 11 Accordingly, we conclude that there is no successiveness to

T.B.’s petition and this appeal. Cf. People v. Rainer, 2013 COA 51,

¶ 34 (concluding that a juvenile’s postconviction claim was not

successive where it was based on Graham, which “established a

new rule of substantive law which should be applied retroactively”),

rev’d on other grounds, 2017 CO 50.

B. Abuse of Process and the Law of the Case Doctrine

¶ 12 The Attorney General characterizes T.B.’s appeal “as an abuse

of process” because he “did not challenge or appeal the first order

denying his motion.” Of course, abuse of process may be asserted

to prevent perpetual review. Dunlap, 173 P.3d at 1062. But below,

the prosecution did not raise abuse of process. Thus, it is not

available here. See People v. Sherman, 172 P.3d 911, 915 (Colo.

App. 2006) (“In this case, the People did not plead or prove an

abuse of process in the trial court. Hence, this affirmative defense

is not available.”).

5 ¶ 13 The law of the case doctrine doesn’t bar our review either.

“Whether the law of the case . . . applies to bar the litigation of an

issue is a question that we review de novo.” Jones v. Samora, 2016

COA 191, ¶ 46. That doctrine applies “to the decisions of an equal

court or a different division of the same court.” Vashone-Caruso v.

Suthers, 29 P.3d 339, 342 (Colo. App. 2001). Thus, the juvenile

court could’ve denied T.B.’s second petition on this basis alone.

But because no other division of this court has addressed T.B.’s

first petition, we are not so limited. Having disposed of the Attorney

General’s procedural arguments, we now turn to the merits.

III. Analysis

¶ 14 T.B. contends that when applied to juveniles, automatic

lifetime registration under CSORA for repeat offenders violates the

Eighth Amendment’s prohibition against cruel and unusual

punishment. But before discussing the constitutional implications

of T.B.’s argument, it is helpful to briefly discuss the relevant

portions of CSORA.

A. Treatment of Juveniles Under CSORA

¶ 15 Juveniles who have been adjudicated for unlawful sexual

behavior must register as sex offenders. § 16-22-103(4), C.R.S.

6 2018 (“The provisions of this article 22 apply to any person who

receives a disposition or is adjudicated a juvenile delinquent based

on the commission of any act that may constitute unlawful sexual

behavior or who receives a deferred adjudication based on

commission of any act that may constitute unlawful sexual

behavior . . . .”). Juvenile sex offenders must adhere to the same

registration requirements as adult sex offenders except that a

juvenile’s sex offender status is not posted on the Colorado Bureau

of Investigation’s website. § 16-22-111(1)(c), C.R.S. 2018 (providing

that the Colorado Bureau of Investigation (CBI) website shall

include information about sex offenders who “[have] been convicted

as an adult” of specific offenses involving unlawful sexual behavior).

¶ 16 The registration requirement lasts for the rest of an

individual’s life or until the court enters an order discontinuing the

registration requirement. See § 16-22-103. Before the court can

enter such an order, an affected individual must file a petition to

discontinue the registration requirement. See § 16-22-113, C.R.S.

2018. In determining whether to grant a petition to discontinue

registration, the juvenile court is guided by a single criterion:

7 whether the person is “likely to commit a subsequent offense of or

involving unlawful sexual behavior.” § 16-22-113(1)(e).

¶ 17 Under CSORA, however, certain individuals are not even

permitted to file a petition to discontinue the registration

requirement. § 16-22-113(3). Included among those who are not

permitted to file a petition are adults who have “more than one

conviction or adjudication for unlawful sexual behavior.” § 16-22-

113(3)(c). This is problematic for T.B. because he is an adult whose

record includes two juvenile adjudications for unlawful sexual

behavior. So, T.B. is not entitled to petition to discontinue his

registration requirement, even though he committed his crimes as a

juvenile, unless the registration requirement, as applied to him, is

unconstitutional. That is where we turn next.

B. Constitutional Challenge

¶ 18 We review constitutional challenges under the Eighth

Amendment de novo. People v. McCulloch, 198 P.3d 1264, 1268

(Colo. App. 2008) (“[A]ppellate scrutiny of an Eighth Amendment

challenge is de novo.”).

¶ 19 The Eighth Amendment prohibits “cruel and unusual

punishments,” U.S. Const. amend. VIII, and “guarantees

8 individuals the right not to be subjected to excessive sanctions,”

Roper v. Simmons, 543 U.S. 551, 560 (2005). This right “‘flows from

the basic “precept of justice that punishment for crime should be

graduated and proportioned”’ to both the offender and the offense.”

Miller, 567 U.S. at 469 (citations omitted).

¶ 20 Analyzing any statute under the Eighth Amendment involves a

two-part inquiry. First, a court must determine whether the statute

imposes a punishment. J.O., ¶ 30. If no punishment is imposed,

we need not venture further because the Eighth Amendment is not

implicated. Id. (If “requiring juvenile sex offenders to register does

not constitute punishment under the Eighth Amendment, [the

court] need not address whether registration is cruel and

unusual.”). 1 If, on the other hand, the statute does impose a

punishment, the court must then decide whether that punishment

is cruel and unusual. Id. So first, we must consider whether

requiring a twice-adjudicated juvenile to register as a sex offender

for life constitutes a punishment. We conclude it does.

1As discussed in more detail in Part III.B below, this is the step at which the juvenile court terminated its analysis.

9 1. Punishment

¶ 21 To decide whether a statute creates a punishment, a court

must first “ascertain whether the legislature meant the statute to

establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92 (2003)

(quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). This is so

because if the legislature intended to impose punishment, “that

ends the inquiry.” Id.; see also Kennedy v. Mendoza-Martinez, 372

U.S. 144, 169 (1963) (noting that “a detailed examination” of the

statute “is unnecessary” where “the objective manifestations of

congressional purpose indicate conclusively that the provisions in

question can only be interpreted as punitive”).

¶ 22 There is some textual indication in CSORA that the legislature

recognized that the registration requirement may be punitive, at

least as it applies to juveniles. Specifically, among the factors a

juvenile court must consider before exempting a juvenile from

registering as a sex offender at sentencing is whether “the

registration requirement . . . would be unfairly punitive” to the

juvenile. § 16-22-103(5)(a) (emphasis added). This is certainly

some recognition by the General Assembly that requiring a juvenile

to register may be punitive (and in some circumstances, unfairly

10 so). See also Millard v. Rankin, 265 F. Supp. 3d 1211, 1226 n.8 (D.

Colo. 2017) (“The use of ‘unfairly’ suggests that at least some level

of punishment is intended — just not an ‘unfair’ level.”). But still,

on balance, we agree with the courts before us: CSORA’s text does

not explicitly create a punishment. See § 16-22-112(1), C.R.S. 2018

(“[I]t is not the general assembly’s intent that the information [found

on the sex offender registry] be used to inflict retribution or

additional punishment on any person convicted of unlawful sexual

behavior . . . .”).

¶ 23 But this does not end our inquiry. Instead, we must “further

examine whether the statutory scheme is ‘so punitive either in

purpose or effect as to negate’” the legislature’s purportedly

nonpunitive purpose. Smith, 538 U.S. at 92 (quoting Hendricks,

521 U.S. at 361). The Supreme Court cautioned that “only the

clearest proof” will suffice to override that declared intent and

transform a civil remedy into a criminal penalty. Id. (quoting

Hudson v. United States, 522 U.S. 93, 100 (1997)).

11 a. Colorado Case Law and the Evolving Legal Landscape Regarding Juvenile Sentencing

¶ 24 Although our supreme court has not weighed in on the issue

we are addressing today, we are not writing on a blank slate.

Indeed, we recognize that on multiple occasions, and without

exception, divisions of this court have concluded that CSORA’s

registration requirement is not a punishment. See People in Interest

of C.M.D., 2018 COA 172, ¶ 20; J.O., ¶ 22; People v. Carbajal, 2012

COA 107, ¶ 37; People v. Sowell, 327 P.3d 273, 277 (Colo. App.

2011); People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011);

Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004); People v.

Stead, 66 P.3d 117, 120 (Colo. App. 2002), overruled on other

grounds by Candelaria v. People, 2013 CO 47; People in Interest of

J.T., 13 P.3d 321, 323 (Colo. App. 2000); People v. Montaine, 7 P.3d

1065, 1067 (Colo. App. 1999); Jamison v. People, 988 P.2d 177, 180

(Colo. App. 1999).

¶ 25 Even though “[w]e are not obligated to follow the precedent

established by another division,” we give “such decisions

considerable deference.” People v. Smoots, 2013 COA 152, ¶ 20,

aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15. And we do not

12 take the prospect of departing from this court’s uniform precedent

lightly, nor do we do so without careful consideration. But a

confluence of developments in the law since our court first

concluded that sex offender registration was nonpunitive twenty

years ago persuades us to take a fresh look at the issue,

particularly as it involves lifetime registration for juveniles.

¶ 26 First, the conclusion that CSORA’s sex offender registration

requirement is nonpunitive has come under recent scrutiny. See

Millard, 265 F. Supp. 3d at 1225 (“[A]lthough panels of the Colorado

Court of Appeals have declined to find SORA’s provisions to be

punitive, those cases have not engaged in the ‘intent-effects’

analysis used by the United States Supreme Court, and the

Colorado Supreme Court has not addressed the question.”). 2

2 We recognize that two divisions have in fact analyzed CSORA’s registration requirement under the “intent-effects” factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963). See People in Interest of C.M.D., 2018 COA 172, ¶¶ 22-23; People v. Stead, 66 P.3d 117, 121-23 (Colo. App. 2002), overruled on other grounds by Candelaria v. People, 2013 CO 47. We, however, respectfully disagree with the conclusions drawn by these divisions. See People v. Moore, 321 P.3d 510, 513 (Colo. App. 2010) (“One division of this court is not bound by the decision of another division.”), aff’d in part and vacated in part on other grounds, 2014 CO 8.

13 Although we are in no way bound by the conclusion in Millard, the

decision highlights that a growing number of states are revisiting

whether sex offender registration requirements are punitive. Id. at

1224 (collecting cases from other jurisdictions where state courts

have concluded that their states’ registration requirements are

punitive).

¶ 27 Second, and more importantly, the legal landscape involving

juvenile sentencing in general has evolved considerably. Consider,

for example, the United States Supreme Court’s evolving

jurisprudence on juvenile sentencing over the last fourteen years.

In Roper, 543 U.S. at 555, 568, the Court concluded that imposing

the death penalty on offenders who were under eighteen at the time

of their capital offenses is unconstitutional. Then in Graham, the

Court held that juveniles convicted of nonhomicide offenses could

not constitutionally be sentenced to life without parole. 560 U.S. at

74. Finally, in Miller, the Court extended Graham, holding “that the

Eighth Amendment forbids a sentencing scheme that mandates life

in prison without possibility of parole for juvenile offenders”

convicted of homicide. 567 U.S. at 479.

14 ¶ 28 Likewise, our supreme court has recently addressed juvenile

sentencing in other contexts and adopted these federal standards.

See, e.g., Estrada-Huerta v. People, 2017 CO 52; Lucero v. People,

2017 CO 49; People v. Tate, 2015 CO 42.

¶ 29 Third, the Eighth Amendment jurisprudence on lifetime sex

offender registration for juveniles in particular has also evolved. A

growing number of courts in other states have recently discussed

the constitutionality of requiring a juvenile to register as a sex

offender for life. See, e.g., In re A.C., 54 N.E.3d 952, 968 (Ill. App.

Ct. 2016); In Interest of T.H., 913 N.W.2d 578 (Iowa 2018); C.K., 182

A.3d 917; In re C.P., 967 N.E.2d 729 (Ohio 2012); In re J.B., 107

A.3d 1 (Pa. 2014); Vaughn v. State, 391 P.3d 1086, 1098 (Wyo.

2017). And, unsurprisingly, many of these courts have drawn on

the Supreme Court’s evolving juvenile sentencing jurisprudence,

emphasizing that juvenile offenders have greater prospects for

rehabilitation. See Miller, 567 U.S. at 479 (“[J]uveniles have

diminished culpability and greater prospects for reform . . . .”).

¶ 30 Against this backdrop, it is our respectful assessment that the

issue of whether the punitive effects of CSORA’s lifetime registration

15 requirement for juveniles are sufficient to override its stated

nonpunitive purpose warrants examination through fresh lenses.

b. Applying the Mendoza-Martinez Factors

¶ 31 To determine if a statute’s punitive effect overrides its declared

civil intent, courts must consider the following: (1) whether the

sanction involves an affirmative disability or restraint; (2) whether it

has historically been regarded as a punishment; (3) whether the

court imposes the sanction only upon a particular finding of

scienter; (4) whether its operation will promote the traditional aims

of punishment; (5) whether the behavior to which it applies is a

crime; (6) whether there is a rational connection to a nonpunitive

purpose; (7) whether it appears excessive in relation to the

nonpunitive purpose. C.M.D., ¶ 22 (citing Mendoza-Martinez, 372

U.S. at 168-69).

¶ 32 When applied to juveniles, some of the factors support the

conclusion that CSORA’s lifetime registration requirement is not a

punishment. First, the registration requirement involves no

affirmative disability or restraint, at least not directly. See id. at

¶ 23 (“Unlike prison, probation, or parole, registration does not limit

where offenders may live or where they may work, although local

16 ordinances may do so.”). Second, there is no finding of scienter

that is required before a juvenile is required to register under

CSORA. Instead, juveniles are required to register unless the

juvenile court determines “that the registration requirement . . .

would be unfairly punitive and that exempting the person from the

registration requirement would not pose a significant risk to the

community.” § 16-22-103(5)(a). This standard, however, does not

require that the juvenile court evaluate a juvenile’s state of mind

before imposing the registration requirement. But we agree with

the courts that have concluded that the scienter factor is of little

value when determining whether a sex offender registration

requirement is a punishment. See Smith, 538 U.S. at 105 (scienter

factor is “of little weight in this case”); T.H., 913 N.W.2d at 592

(“[T]he lack of a scienter requirement weighs in favor, albeit

marginally, of finding the statute nonpunitive.”); State v. Eighth

Judicial Dist. Court, 306 P.3d 369, 387 (Nev. 2013) (same).

¶ 33 The remaining factors, however, support the conclusion that

requiring automatic lifetime sex offender registration for juvenile

offenses is a punishment.

17 ¶ 34 First, the effect of requiring a juvenile to register as a sex

offender for life is reminiscent of traditional forms of punishment.

The dissemination of information that is then used to humiliate and

ostracize offenders can resemble forms of punishment that

historically have been used to ensure that offenders cannot live a

normal life. Smith, 538 U.S. at 109 (Souter, J., concurring in the

judgment). And when applied to juveniles, the dissemination of

information becomes even more characteristic of a punishment

because the information about a juvenile’s criminal history would

not otherwise be publicly available. See § 19-1-304(1), C.R.S. 2018

(setting forth limitations on public access to juvenile records); see

also Chief Justice Directive 05-01, Directive Concerning Access to

Court Records § 4.60(b)(4) (amended Oct. 18, 2016) (providing that

juvenile delinquency records are presumptively non-public).

¶ 35 It is true that the Supreme Court concluded that the

dissemination of accurate information about an individual’s

criminal record is not a traditional form of punishment. Smith, 538

U.S. at 98. But in that case the Court was addressing the

consequences that befall adult sex offenders. Id. And, unlike

18 records of juvenile adjudications, records of adult convictions are

presumptively public.

¶ 36 It is also true that T.B.’s status as a sex offender is not

available on the sex offender registry that the Colorado Bureau of

Investigation is required to make available on the internet. See

§ 16-22-111(1)(c). But that doesn’t change the fact that anyone

who inquires into T.B.’s background is given access to information

that he or she would not otherwise be able to have.3 Moreover, any

member of the public may request and obtain from his or her local

law enforcement agency a list of sex offenders, which would include

juvenile offenders such as T.B. See § 16-22-112(2). And at the

hearing on his petition to deregister, T.B.’s parole officer testified

that information about T.B.’s status as a sex offender could still

show up in a background check and be the basis for T.B. losing an

apartment or being fired from his job. These public opprobrium

3In his reply in support of his petition, T.B. asserts, with supporting documents, that “a simple [G]oogle search of [T.B.’s] name reveals two private websites that have his home address, details of his adjudication, his age and date of birth, his physical description, and one site includes his picture.”

19 consequences are often the sort of consequences associated with

more traditional forms of punishment.

¶ 37 Further, as the Supreme Court has recognized, juveniles are

different from adults for the purposes of the Eighth Amendment.

See Miller, 567 U.S. at 471 (“Because juveniles have diminished

culpability and greater prospects for reform, we explained, ‘they are

less deserving of the most severe punishments.’” (quoting Graham,

560 U.S. at 68)). This differentiation is particularly acute when

considering the consequences that juveniles face when they are

required to register as sex offenders. As Ohio’s supreme court

stated:

With no other offense is the juvenile’s wrongdoing announced to the world. Before a juvenile can even begin his adult life, before he has a chance to live on his own, the world will know of his offense. He will never have a chance to establish a good character in the community. He will be hampered in his education, in his relationships, and in his work life. His potential will be squelched before it has a chance to show itself.

C.P., 967 N.E.2d at 741. CSORA imposes similar burdens on T.B.

for offenses that he committed when he was a child; and these

consequences resemble traditional forms of punishment.

20 ¶ 38 Second, CSORA’s lifetime registration requirement promotes

the traditional aims of punishment — “retribution and deterrence.”

Mendoza-Martinez, 372 U.S. at 168. A statute begins to look more

retributive, and therefore punitive, when it imposes a sanction for

past conduct and when it does not provide a mechanism by which

an offender can “reduce or end registration based upon a showing

that the offender is no longer a threat to the community.” Starkey

v. Okla. Dep’t of Corr., 305 P.3d 1004, 1028 (Okla. 2013); cf. J.O.,

¶ 29 (stating that among the distinctions that rendered the

Colorado’s juvenile sex offender requirement nonpunitive was that

the juvenile in the case could “petition to discontinue registration

after successfully completing and being discharged from his

juvenile sentence or disposition”). CSORA does both with respect to

twice-adjudicated juveniles like T.B. T.B. was compelled to register

solely because of his past conduct and is still required to register

even though the juvenile court made an express finding that he is

no longer a danger to the community and is not likely to reoffend.

Moreover, as the federal district court in Millard recognized, the

Colorado Bureau of Investigation’s own website states that one of

the goals of the sex offender registry is deterrence; and deterrence is

21 a traditional goal of punishment. See Millard, 265 F. Supp. 3d at

1229 (“The CBI website also states that the registry’s goals are

‘Citizen/Public Safety; Deterrence of sex offenders for committing

similar crimes; and Investigative tool for law enforcement.’” (quoting

Colorado Bureau of Investigation, Registration,

https://perma.cc/HD4C-PYR4)).

¶ 39 Third, for juveniles, the behavior to which CSORA applies is

already a crime.4 For juveniles, CSORA’s lifetime registration

requirement sweeps in only those who have been adjudicated for

committing past crimes — and, once the requirement to register for

life is imposed, it does so without regard to whether he or she is

likely to reoffend. And “[t]he fact that a statute applies only to

behavior that is already, and exclusively, criminal supports a

conclusion that its effects are punitive.” Doe v. State, 189 P.3d 999,

1014 (Alaska 2008).

4 For adults, CSORA’s registration requirement extends beyond just those who have been convicted of sex offenses, and also reaches individuals who have been found not guilty by reason of insanity of certain sex offenses and are later released, see § 16-8-115(4), C.R.S. 2018; see also People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011) (applying CSORA’s registration requirement to an adult who was found not guilty by reason of insanity of sexual assault).

22 ¶ 40 The final two factors — whether there is a rational connection

between the sanction and its stated nonpunitive purpose and

whether the statute is excessive given that purpose — must be

considered together. It cannot be disputed that there is a rational

connection between CSORA’s registration requirement and public

safety. § 16-22-112(1). But we also must consider whether

CSORA’s lifetime registration requirement for juveniles is excessive

given the important public safety justifications at issue. Smith, 538

U.S. at 97.

¶ 41 The question in this regard is not whether the legislature has

chosen the best path to address its nonpunitive objective, but

rather whether “the regulatory means chosen are reasonable in

light of the nonpunitive objective.” Id. at 105. Other courts have

placed the greatest weight on this factor. See T.H., 913 N.W.2d at

594 (“The final Mendoza-Martinez factor is the most significant of

the seven . . . .”); see also Wallace v. State, 905 N.E.2d 371, 383

(Ind. 2009) (collecting cases stating the same). We agree with the

courts that have viewed this as a weighty factor.

¶ 42 Indeed, a growing number of states have concluded that

lifetime registration requirements similar to CSORA’s are excessive

23 as applied to juveniles considering their nonpunitive purpose. See

Wallace, 905 N.E.2d at 384 (The statute is excessive in relation to

its public safety purpose because it “makes information on all sex

offenders available to the general public without restriction and

without regard to whether the individual poses any particular

future risk.”); T.H., 913 N.W.2d at 596 (“[M]andatory [lifetime]

registration for juveniles is excessive in light of its nonpunitive

purpose.”); Commonwealth v. Baker, 295 S.W.3d 437, 446 (Ky.

2009) (“Given . . . the fact that there is no individual determination

of the threat a particular registrant poses to public safety, we can

only conclude that [the statute requiring lifetime registration] is

excessive with respect to the nonpunitive purpose of public

safety.”); C.P., 967 N.E.2d at 742 (requiring lifetime sex offender

registration for juveniles is excessive because it is not dependent on

what is actually necessary to preserve public safety).

¶ 43 In contrast, other states have concluded that a sex offender

registration statute is not excessive in relation to its nonpunitive

purpose when it provides an individualized assessment of the risk

that a juvenile will reoffend. See In re Nick H., 123 A.3d 229, 247

(Md. Ct. Spec. App. 2015) (holding that a statute is not excessive

24 because it requires that the court make an individualized finding

that registration is appropriate for the juvenile and the period is

only for up to five years); Eighth Judicial Dist. Court, 306 P.3d at

387 (holding that a statute is not excessive because it limits sex

offender registration for juveniles to only those crimes that pose the

highest risk of reoffending); In re Justin B., 747 S.E.2d 774, 783

(S.C. 2013) (holding that a statute is not excessive when a juvenile

may petition to deregister after ten years); Vaughn, 391 P.3d at

1100 (holding that a statute is not excessive in relation to public

safety purpose because an offender can apply for removal after ten

years). Because CSORA prohibits T.B. from filing a petition to

deregister, he is precluded from getting an individualized

assessment related to whether registration is still necessary for the

protection of the community.

¶ 44 We conclude that requiring a juvenile, even one who has been

twice adjudicated for offenses involving unlawful sexual behavior, to

register as a sex offender for life without regard for whether he or

she poses a risk to public safety is an overly inclusive — and

therefore excessive — means of protecting public safety. That

overinclusiveness is exemplified in this case. The juvenile court

25 specifically found that T.B. “successfully addressed all issues

related to his sexual offending behavior” and that he was “not likely

to reoffend.” But even in light of these findings, CSORA left the

juvenile court powerless to consider — let alone grant — T.B.’s

petition to deregister.

¶ 45 Under CSORA, there is simply no connection between the

lifetime registration requirement for juveniles and the likelihood

that the registrant will reoffend; the only criterion for lifetime

registration is a finding that the juvenile has been twice adjudicated

for unlawful sexual behavior. See generally § 16-22-103. In other

words, once the requirement to register for life is imposed, it

remains in effect without regard to whether the registrant is a

continuing danger to the public. Thus, we conclude that because

CSORA’s lifetime registration requirement is not adequately

tethered to the statute’s stated nonpunitive purpose, the automatic

lifetime registration requirement for juvenile offenders is excessive.

And because CSORA’s lifetime registration requirement is excessive

in relation to its nonpunitive purpose when applied to juveniles, we

conclude that it operates more like a punishment.

26 ¶ 46 In short, the weightiest Mendoza-Martinez factors, including

ones most pertinent to our determination, demonstrate that the

punitive effects of CSORA’s lifetime registration requirement as

applied to juveniles override its stated nonpunitive purpose. As a

result, we decline to adopt the conclusions of prior divisions of this

court. See People v. Washington, 2014 COA 41, ¶ 27 (“To the extent

that several divisions of this court have departed from Strickland’s

above-noted statements regarding the applicable burden of proof,

we are not obligated to follow those divisions.”) (citations omitted);

People in Interest of S.N-V., 300 P.3d 911, 914 (Colo. App. 2011) (a

division of the court of appeals is not bound by other divisions).

Instead, we conclude that CSORA’s lifetime registration requirement

for juveniles is a punishment within the meaning of the Eighth

Amendment.

¶ 47 But this still does not end the inquiry. Unlike prior divisions,

because we have concluded that CSORA’s lifetime registration

requirement for juveniles constitutes a punishment, we must now

consider whether the punishment is cruel and unusual.

27 2. Is the Punishment Cruel and Unusual?

¶ 48 “Embodied in the Constitution’s ban on cruel and unusual

punishments is the ‘precept of justice that punishment for crime

should be graduated and proportioned to [the] offense.’” Graham,

560 U.S. at 59 (quoting Weems v. United States, 217 U.S. 349, 367

(1910)). The juvenile court never reached the issue of whether the

lifetime registration requirement is cruel and unusual on its face or

as applied to T.B. This is entirely understandable given this court’s

previously unbroken line of cases concluding that the registration

requirement was not a punishment. See, e.g., J.O., ¶ 30 (declining

to address whether a punishment is cruel and unusual because

division concluded that registration requirement is not a

punishment); see also Patterson v. James, 2018 COA 173, ¶ 40

(Published opinions of the court of appeals “are binding precedent

for ‘all lower court judges.’” (quoting C.A.R. 35(e))).

¶ 49 Whether a particular punishment is cruel and unusual is a

fact-intensive inquiry. See Millard, 265 F. Supp. 3d at 1231

(analyzing whether registration is cruel and unusual punishment by

examining the specific effects that registration has on each

offender); cf. Anderson v. Colo., Dep’t of Corr., 848 F. Supp. 2d 1291,

28 1296 (D. Colo. 2012) (denying motion for summary judgment

because there were material facts in dispute as to whether

restricting access to exercise is a cruel and unusual punishment).

As such, it is best addressed by the trial court in the first instance.

¶ 50 At the hearing on his petition, T.B. submitted some evidence

relevant to whether the lifetime registration requirement constituted

a cruel and unusual punishment. For example, T.B.’s parole officer

testified about some of the hardships that he faces as a registrant.

T.B. also put in the record numerous scholarly articles discussing

whether the registration requirement is cruel and unusual as

applied to juveniles. See, e.g., Amy E. Halbrook, Juvenile Pariahs,

65 Hastings L.J. l (2013); Human Rights Watch, Raised on the

Registry: The Irreparable Harm of Placing Children on Sex Offender

Registries in the US (May 2013), https://perma.cc/B3E9-AT5S.

¶ 51 Unsurprisingly, the People didn’t rebut this evidence, as they

were — quite understandably — relying on the contention that the

juvenile court was bound to follow this court’s decisions concluding

that CSORA’s lifetime registration requirement was not a

punishment. And, because it concluded that the lifetime

registration requirement for juveniles was not a penalty, the

29 juvenile court didn’t make any findings about whether it’s cruel and

unusual. See, e.g., J.O., ¶ 30 (“[H]aving concluded that requiring

juvenile sex offenders to register does not constitute punishment

under the Eighth Amendment, we need not address whether

registration is cruel and unusual.”).

¶ 52 But neither of the parties nor the juvenile court had the

guidance of this opinion during any of the prior proceedings, and,

as a result, they had no notice that evidence and findings related to

whether the punishment was cruel and unusual would be required

to resolve this case and rule on T.B.’s petition to deregister. Thus,

on remand, both T.B. and the People must be afforded an

opportunity to present additional evidence on the issue of whether

CSORA’s lifetime registration requirement for juveniles constitutes

cruel and unusual punishment. See In re Marriage of Fabos, 2019

COA 80, ¶ 57 (“[B]ecause the court and the parties did not have the

guidance of [the supreme court’s opinion] during the earlier

hearing, both parties should be afforded the opportunity to present

the district court with additional evidence and argument if either

party wishes to do so.”). Accordingly, we remand the case to the

juvenile court to take further evidence and make findings on the

30 issue of whether CSORA’s lifetime registration requirement for

juveniles — either facially or as applied to T.B. — constitutes cruel

and unusual punishment in violation of the Eighth Amendment.

C. Irrebuttable Presumption

¶ 53 T.B. also argues that CSORA creates an impermissible

irrebuttable presumption that a previous offender will offend again

and, therefore, remains a danger to the community forever.

Statutes that create irrebuttable presumptions are disfavored. See

Vlandis v. Kline, 412 U.S. 441, 446 (1973); People in Interest of

S.P.B., 651 P.2d 1213, 1217 (Colo. 1982). The irrebuttable

presumption doctrine springs from substantive due process, so we

apply the rational basis test to determine the constitutionality of a

statute unless the statute infringes upon a fundamental

constitutional interest. People v. Young, 859 P.2d 814, 818 (Colo.

1993) (“[W]hen no fundamental right is implicated, the legislation is

subject to evaluation for substantive due process purposes

pursuant to the rational basis test . . . .”). In his briefing to this

court, however, T.B. does not articulate what fundamental

constitutional interest the registration requirement infringes on.

Because of this and because we are reversing the trial court’s order

31 based on our conclusion that CSORA’s lifetime registration

requirement constitutes a punishment, we decline to address T.B.’s

argument that the automatic registration requirement imposes an

unconstitutional irrebuttable presumption.

IV. Conclusion

¶ 54 The juvenile court’s order denying T.B.’s petition to

discontinue the requirement that he register as a sex offender is

reversed, and the case is remanded to the juvenile court for further

proceedings consistent with this opinion.

JUDGE HARRIS concurs.

JUDGE WEBB dissents.

32 JUDGE WEBB, dissenting.

¶ 55 Every division of this court to have considered Eighth

Amendment challenges to the mandatory lifetime registration

requirement in the Colorado Sex Offender Registration Act (CSORA)

has held that because this requirement does not constitute

punishment — cruel and unusual or otherwise — it is

constitutional. This case tests the principle that one division of this

court should give considerable deference to decisions of other

divisions.

¶ 56 But because a court has determined that despite T.B.’s two

prior sex offenses, he poses a low risk of sexually reoffending,1 does

this requirement still survive Eighth Amendment scrutiny? True, a

similar determination did not face any of those prior divisions.

Even so, nonpunitive purposes of CSORA other than safeguarding

against recidivism, as recognized by prior divisions, show that the

registration requirement is not an excessive sanction — and thus

1 During the hearing, the trial court said T.B. “is not a risk to sexually reoffend.” Then in its order, the trial court said T.B. “is unlikely to reoffend.” See Reed v. Indus. Claim Appeals Office, 13 P.3d 810, 813 (Colo. App. 2000) (“[I]f there is a conflict between oral and written findings, it is the written order that controls.”).

33 punishment — under the Eighth Amendment. And because

relatively recent United States Supreme Court cases imposing

constitutional limitations on juvenile sentencing deal with palpable

punishments — the death penalty and life without possibility of

parole — those cases provide little guidance in answering the

preliminary question whether mandatory registration is punishment

at all. So, I discern insufficient reason to disavow our unanimous

precedent. Reaching an issue not addressed by the majority, I

further conclude that the requirement does not violate due process,

either on its face or as applied to T.B.

¶ 57 Both the majority’s heavy reliance on out-of-state authority

and T.B.’s contrary policy arguments are better addressed by the

General Assembly or our supreme court. Therefore, and with

respect, I dissent.

I. This Appeal Is Not Procedurally Barred

¶ 58 I agree with the majority that T.B.’s constitutional arguments

are not procedurally barred and note that the Attorney General does

not dispute preservation.

34 II. The Eighth Amendment Does Not Afford T.B. Relief

A. Background

¶ 59 The majority correctly concludes that constitutional challenges

under the Eighth Amendment are reviewed de novo. People v.

McCulloch, 198 P.3d 1264, 1268 (Colo. App. 2008) (“[A]ppellate

scrutiny of an Eighth Amendment challenge is de novo.”). The

majority’s overview of general Eighth Amendment jurisprudence,

summary of the relevant Colorado statutes, and explanation of how

those statutes apply to T.B. are accurate and lead to the

inescapable conclusion that T.B. is entitled to petition to

discontinue his registration requirement if — and only if — the

registration requirement, as applied to him, is cruel and unusual

punishment.

¶ 60 Thus, the threshold question is whether this requirement

constitutes punishment. In my view, it never did, and still does

not.

B. Court of Appeals Precedent

¶ 61 Citing ten published cases, the majority acknowledges that

“without exception, divisions of this court have concluded that

CSORA’s registration requirement is not a punishment.” Supra

35 ¶ 24. The majority does not cite contrary precedent from either our

supreme court or the United States Supreme Court. Nor have I

found any.

¶ 62 Everyone agrees that one division of this court gives decisions

of other divisions “considerable deference.” People v. Smoots, 2013

COA 152, ¶ 20, aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15;

see also Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 143

(Berger, J., concurring in part and dissenting in part) (“[W]e should

not easily cast aside a considered decision by a prior division of this

court.”). 2 Because I adhere to the unanimous holdings of other

divisions, the majority’s string citation warrants a closer look.

2 The destabilizing effect on trial courts and litigants of creating a conflict among published decisions of this court also favors consistency. See Greyhound Lines, Inc. v. County of Santa Clara, 231 Cal. Rptr. 702, 704 (Cal. Ct. App. 1986) (“We acknowledge we are not bound by an opinion of another District Court of Appeal, however persuasive it might be. We respect stare decisis, however, which serves the important goals of stability in the law and predictability of decision.”) (citation omitted). Under C.A.R. 35(e), “[o]pinions designated for official publication must be followed as precedent by all lower court judges in the state of Colorado.” But if conflicting published opinions exist, should a trial judge go with the majority of divisions, take the most recent pronouncement, or decide what is the better rule? Of course, litigants can argue for any of these options. And whatever choice the trial judge makes, the loser is compelled to appeal as a means of preserving the question until our supreme court speaks.

36 ¶ 63 In People in Interest of J.O., 2015 COA 119, ¶ 30, the division

held that “sex offender registration under section 16-22-103[,

C.R.S. 2018] — even as applied to juveniles — does not constitute

punishment.” The division relied on the following court of appeals

cases that have reached this conclusion.

• Jamison v. People, 988 P.2d 177, 180 (Colo. App. 1999) (“[T]he

General Assembly did not intend the registration requirement

to inflict additional punishment on a person convicted of a

sexual offense. Rather, such registration is required in order

to aid law enforcement officials in investigating future sex

crimes and to protect the public safety.”).

• People in Interest of J.T., 13 P.3d 321, 323 (Colo. App. 2000)

(“The statutory duty to register as a sex offender is not a

criminal punishment.”).

• People v. Stead, 66 P.3d 117, 120 (Colo. App. 2002) (“[T]he sex

offender registration statute does not disadvantage those

offenders subject to its provisions; thus, registration is not

punishment . . . .”) (citation omitted), overruled on other

grounds by Candelaria v. People, 2013 CO 47.

37 • People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011) (“The

statutory scheme[ for sex offender registration] . . . indicates

that registration is not punitive, but rather aids law

enforcement in investigating future crimes and promotes

public safety.”).

• People v. Sowell, 327 P.3d 273, 277 (Colo. App. 2011) (“Laws

imposing registration requirements on sex offenders [are] . . .

not punishment . . . .”).

• People v. Carbajal, 2012 COA 107, ¶ 37 (“Sex offender

registration is not an element of a defendant’s sentence, and

the purpose of registration is not to punish the defendant, but

to protect the community and to aid law enforcement officials

in investigating future sex crimes.”).

• People v. Montaine, 7 P.3d 1065, 1067 (Colo. App. 1999)

(“Although the duty to register flows directly from defendant’s

conviction as a sex offender, it does not enhance defendant’s

punishment for the offense.”).3

3 Similar Colorado cases not cited in J.O. include Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004) (“The purpose of sex offender registration is not to inflict additional punishment on a person convicted of a sexual offense, but rather to aid law

38 ¶ 64 The J.O. division explained that these cases “comport with the

position of the Supreme Court” in Smith v. Doe, 538 U.S. 84, 93

(2003) (upholding Alaska Sex Offender Registration Act’s

constitutionality because statutory text’s stated public safety

objective was nonpunitive). J.O., ¶ 22. And it pointed out that

many of them recognize the General Assembly’s expressly

nonpunitive intent as to sex offender registration:

The general assembly declares . . . that, in making this information available to the public, as provided in this section and section 16-22-110(6), it is not the general assembly’s intent that the information be used to inflict retribution or additional punishment on any person convicted of unlawful sexual behavior or of another offense, the underlying factual basis of which involves unlawful sexual behavior.

§ 16-22-112(1), C.R.S. 2018.

enforcement officials in investigating future sex crimes and to protect the public safety.”); People v. Tuffo, 209 P.3d 1226, 1230 (Colo. App. 2009) (“[T]he registration and notification requirements established in the SVP statute are intended to protect the community rather than punish the offender.”); and People in Interest of I.S., 2017 COA 155, ¶ 9 (“Because sex offender registration is not an element of a defendant’s sentence, it is of no consequence to this appeal that the court later voided I.S.’s first sentence.”).

39 ¶ 65 Of course, this statute applies here just as it did in J.O. And

the Supreme Court has not retreated from Smith.

¶ 66 To dispel the majority’s conclusion that the “issue of whether

the punitive effects of CSORA’s lifetime registration requirement for

juveniles are sufficient to override its stated nonpunitive purpose

warrants examination through fresh lenses,” supra ¶ 30 , three of

our prior cases deserve more than a summary.

¶ 67 In Stead, 66 P.3d at 121, the division applied the factors in

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), to

determine whether a defendant’s placement on the internet sex

offender list constituted punishment. The division explained

that the internet notification scheme may have the purpose or effect of a punishment in that it is triggered by a criminal offense, and it may require an additional finding of scienter. However, the scheme is not punitive in that it imposes no fine, confinement, or restraint; it has an expressly nonpunitive intent and purpose; it is not traditionally considered a type of punishment; and it is not excessive in relation to the public safety purposes it serves.

Stead, 66 P.3d at 123. It concluded that “taken as a whole, the

Internet posting provision of the sex offender statute does not

constitute additional punishment.” Id.

40 ¶ 68 Similarly, in People v. Rowland, 207 P.3d 890, 892 (Colo. App.

2009), the division applied the Mendoza-Martinez factors to section

16-13-903(3)(a), C.R.S. 2018, which requires that “the sexually

violent predator’s status as being subject to community notification

shall be entered in the central registry of persons required to

register as sex offenders created pursuant to section 16-22-110.”

Then the division held that the community notification

requirements did not constitute punishment for the following

• “[C]ommunity notification does not impose an affirmative

disability or restraint because it does not, on its face, restrict

where an offender may live or work and does not alter either

the length of incarceration or the parole eligibility date.”

Rowland, 207 P.3d at 893.

• “Notification to the affected community has not traditionally

been considered punishment.” Id. at 894.

• Even though community notification requires a finding of

scienter, this “standing alone does not require treating a

statute as punishment.” Id.

41 • “[C]ommunity notification requirements may be like

punishment because they have a deterrent effect . . . [but] this

factor is inconclusive.” Id.

• Although “[t]he behavior to which community notification

attaches is a crime . . . ‘[the General Assembly] may impose

both a criminal and a civil sanction in respect to the same act

or omission.’” Id. (quoting United States v. Ward, 448 U.S.

242, 250 (1980)).

• “[T]he General Assembly’s stated purpose is to protect the

community. Informing and educating the community . . . are

rationally connected to this purpose.” Id.

• “The costs of notifying the target groups or specific

communities does not appear to be excessive in light of the

public safety purpose of the legislation and the controlled

procedures for disseminating the information.” Id.

¶ 69 Sexually violent predator designation is at least as impactful

on the registrant as sex offender registration alone. See § 16-22-

108(1)(d)(I), C.R.S. 2018 (“Any person who is a sexually violent

predator . . . has a duty to register for the remainder of his or her

42 natural life . . . .”). Given the offenses that lead to SVP designation,

greater approbation may well attach. § 16-22-102(7), C.R.S. 2018.

¶ 70 Most recently, in People in Interest of C.M.D., 2018 COA 172,

the division analyzed these factors to conclude CSORA is not

punishment as applied to a juvenile who — like T.B. — is subject to

mandatory lifetime sex offender registration. The division held that

“the statute itself does not impose an ‘affirmative disability or

restraint.’ Unlike prison, probation, or parole, registration does not

limit where offenders may live or where they may work, although

local ordinances may do so.” Id. at ¶ 23 (quoting Smith, 538 U.S. at

99). It also determined:

• “[T]he statute’s operation does not ‘promote the traditional

aims of punishment — retribution and deterrence.’” Id.

(quoting Mendoza-Martinez, 372 U.S. at 168). Rather, “[t]hose

aims are primarily furthered by imposition of the sentence

associated with the offense, not the associated registration

requirement.” Id.

• “[A]lthough the conduct to which registration applies is

already a crime, that crime carries its own punishment; any

43 punishment arising from a failure to register results from a

proceeding separate from the original offense.” Id.

• “[T]he stated and rational purpose of sex offender registration

is to protect the public, and requiring registration is not

excessive in light of this purpose.” Id.

¶ 71 Because Stead, Rowland, and C.M.D. are particularly well

reasoned, I decline even to revisit all but one of the

Mendoza-Martinez factors. As to the last such factor — whether the

sanction appears excessive in relation to the alternative purposes

assigned — these cases did not evaluate protecting the public from

an offender who, like T.B., had been determined to pose little risk of

reoffending. Even so, T.B.’s argument that lifetime sex offender

registration constitutes punishment because of this determination

misses the mark in at least three ways.

¶ 72 First, T.B. disregards that “[t]he determination whether an

offender is likely to reoffend is an inexact science.” State v. Yost,

2008-Ohio-3682, ¶ 11, 2008 WL 2822291, *2 (Ohio Ct. App. July

24, 2008). Indeed, “there appears to be a consensus among experts

that it is impossible to say that a person who has committed a sex

offense — which by definition includes every person potentially

44 subject to registration under the act — poses no risk of reoffense.”

L.L. v. Commonwealth, 20 N.E.3d 930, 938 (Mass. 2014). And here,

the trial court did not have the benefit of expert testimony.

¶ 73 Second, T.B. mistakenly assumes that protecting the public

from him is the only purpose for registration. As discussed in Part

III.E below, the government also has an interest in assisting law

enforcement. And law enforcement may legitimately choose to start

investigating a sex offense with a known sex offender in the vicinity

of the crime. For example, even if such an offender poses a very low

risk of reoffending, the offender may be able to provide leads to

other offenders who do pose such a risk.

¶ 74 Third, as also discussed Part III.E, providing notice to the

public about a sex offender who has committed a crime requiring

registration is informational. Given the inherent imprecision in

predicting that offender’s future criminality, informed citizens can

— and should be allowed to — make their own risk assessments,

for themselves and their vulnerable family members. See Smith,

538 U.S. at 104 (Sex offender registration “allow[s] the public to

assess the risk on the basis of accurate, nonprivate information

about the registrants’ convictions.”).

45 ¶ 75 In light of these nonpunitive purposes, I reject the majority’s

conclusion that lifetime sex offender registration of an offender such

as T.B. is an excessive sanction and thus punishment.

¶ 76 But does Millard v. Rankin, 265 F. Supp. 3d 1211, 1225 (D.

Colo. 2017), cited by the majority as one of three reasons for

discarding nearly two decades of this court’s precedents, require a

contrary conclusion? Of course, as the majority admits, we are not

bound by Millard. 4 See, e.g., Monez v. Reinertson, 140 P.3d 242,

245 (Colo. App. 2006) (“While we must follow the United States

Supreme Court’s interpretation of federal law, we are not bound by

decisions of lower federal courts.”).

¶ 77 More importantly, as the division in C.M.D., ¶ 24, explained:

Although we conclude that the CSORA is not punishment . . . we recognize that the federal court in Millard, on which C.M.D. relies, reached a contrary conclusion. In that case, three registered sex offenders testified to specific adverse consequences they had suffered — including forced changes of residence, one man’s exclusion from his own children’s school, and difficulties in obtaining or maintaining employment — as a result of the registration requirement. The court observed that such evidence of “actual adverse

4 An appeal has been filed in Millard with the Tenth Circuit, case number 17-1333, docketed September 21, 2017.

46 consequences” of sex offender registration was relevant to the plaintiffs’ Eighth Amendment claim. 265 F. Supp. 3d at 1222. After acknowledging the non-punitive legislative intent of the CSORA, the court concluded that, based on the testimony, the statute’s effects on the three plaintiffs before it were clearly punitive.

¶ 78 By contrast, here the trial court made no findings about how

registration impacted T.B. As to the evidence of adverse effects on

T.B., he expressed pride in his employment as a fast-food

restaurant manager, but believed he was being held back by the

continued obligation to register as a sex offender. And his

probation officer testified that T.B. “can’t seem to get a better job.

He can’t seem to get an apartment because of the scrutiny that he’s

under when he applies.” This evidence falls short of Millard, even

were I to accept its rationale.

C. Differences Between Juveniles and Adults

¶ 79 T.B. urges us to view whether lifetime sex offender registration

for juveniles constitutes punishment through the prism of Supreme

Court cases like Graham, Miller, and Roper. And the majority

identifies these cases as a second reason for going against this

court’s unanimous precedent. But the division in J.O. rejected this

47 very argument. See J.O., ¶¶ 2, 21-30 (Lifetime sex offender

registration did not violate J.O.’s constitutional rights even though

juvenile offenders are “different from adults in their diminished

culpability and greater prospects for reform.” (quoting People v.

Tate, 2015 CO 42, ¶ 28)); see also C.M.D., ¶ 20 (agreeing with J.O.).

¶ 80 True, unlike the juvenile in J.O., T.B. cannot petition to

discontinue registration. Still, the amount of time during which a

sex offender is required to register does not transform the

registration requirement into punishment. See Sowell, 327 P.3d at

277 (“Nor does modification of this requirement from an indefinite

to a lifelong duty to register transform [sex offender] registration

into a punishment.”). And cases that have reached the opposite

conclusion — such as In re C.P., 967 N.E.2d 729, 741 (Ohio 2012)

— were decided in jurisdictions where sex offender registration

requirements are considered punishment. See State v. Williams,

952 N.E.2d 1108, 1112 (Ohio 2011) (“[A]ll doubt has been removed:

[Ohio’s sex offender registration statute] is punitive.”).

¶ 81 As well, reliance on Roper, Graham, and Miller to show an

Eighth Amendment violation is circular. These cases all focus on

the differences between children and adults in imposing

48 punishments. See People v. Gutierrez, 324 P.3d 245, 262 (Cal.

2014) (“At the core of Miller’s rationale is the proposition —

articulated in Roper, amplified in Graham, and further elaborated in

Miller itself — that constitutionally significant differences between

children and adults ‘diminish the penological justifications for

imposing the harshest sentences on juvenile offenders.’” (quoting

Miller, 567 U.S. at 472)). Yet, recognizing that “children are less

culpable and more capable of change than adults is relevant in

determining whether the harshest punishment is appropriate, but it

does not establish that sex offender registration is

punishment . . . .” In re J.C., 221 Cal. Rptr. 3d 579, 592 (Cal. Ct.

App. 2017)); see also State v. Martin, 61 N.E.3d 537, 543 (Ohio Ct.

App. 2016) (“The flaw in Martin’s argument is that he is trying to

equate a death sentence or a life sentence without the possibility of

parole with having to register as a sex offender for life. It is illogical

to do so and, as such, we decline to extend the reasoning in the

three United States Supreme Court cases to the facts present

here.”).

¶ 82 So, affording a repeat juvenile sex offender the leniency

espoused in these cases bootstraps leniency as an answer to the

49 punishment question. But as shown above, at least in Colorado,

sex offender registration is not a punishment.

¶ 83 As the majority points out, in six states Eighth Amendment

jurisprudence as applied to juvenile sex offenders has evolved. And

this trend, according to the majority, is a third reason for breaking

ranks with other divisions of this court. But in one of those states

— Illinois — its supreme court has not yet spoken. And these cases

were available to the C.M.D. division for its consideration.

¶ 84 As well, in other equally recent cases, the majority’s decision

to treat lifetime registration as punishment continues to be rejected.

See, e.g., J.C., 221 Cal. Rptr. 3d at 593 (“Because J.C. has failed to

establish that juvenile sex offender registration is punishment, his

claim that registration is cruel and unusual punishment must

fail.”); State v. Boche, 885 N.W.2d 523, 532 (Neb. 2016) (“Because

we conclude the lifetime registration requirements imposed on [the

juvenile] are not punishment, his argument that these registration

requirements amount to cruel and unusual punishment must

necessarily fail.”); In Interest of Justin B., 799 S.E.2d 675, 681 (S.C.

2017) (“The requirement that . . . juveniles who commit criminal

50 sexual conduct must register as a sex offender and wear an

electronic monitor is not a punitive measure . . . .”).

¶ 85 This mix of cases hardly presents a tidal wave that we must

ride or risk being washed away. Instead, absent an overarching

constitutional right — which the Supreme Court has not identified

— this difference of opinion illustrates federalism. For this reason,

the majority’s holding would be a choice better made by our

supreme court. See People v. Herrera, 39 Cal. Rptr. 3d 578, 586

(Cal. Ct. App. 2006) (“[W]e . . . are unwilling to blaze a new trail

after the courts have followed a single path for decades. If

appropriate, any such change of direction is better left to the

Supreme Court.”).

¶ 86 On the one hand, having discerned no punishment, I need not

address whether the purported punishment is cruel and unusual.

But on the other hand, because the majority finds an Eighth

Amendment violation, it does not address T.B.’s alternative due

process claim. So, I must address that claim as well.

III. T.B.’s Due Process Rights Were Not Violated

¶ 87 T.B. next contends lifetime sex offender registration for repeat

juvenile sex offenders violates due process. Although his opening

51 brief does not clearly distinguish between procedural and

substantive due process, because he raised both principles below, I

interpret his appellate arguments as also encompassing both of

them, but discern no constitutional violation under either principle.

A. Standard of Review and Law

¶ 88 The Constitution guarantees that the government shall not

deprive any person of an interest in “life, liberty or property without

due process of law.” U.S. Const. amend. XIV, § 1. “This clause

imposes two different constraints on governmental decisions:

procedural due process and substantive due process.” M.S. v.

People, 2013 CO 35, ¶ 9; see Turney v. Civil Serv. Comm’n, 222 P.3d

343, 352 (Colo. App. 2009) (“Procedural due process . . . requires

fundamental fairness in procedure and is met if the party is

provided with notice and an opportunity to be heard. Substantive

due process . . . guarantees that the state will not deprive a person

of those rights for arbitrary reasons regardless of how fair the

procedure is.”) (citation omitted); Salazar v. Am. Sterilizer Co., 5

P.3d 357, 371 (Colo. App. 2000) (“Procedural due process requires

that a party be given notice and an opportunity to be heard. It also

requires a fundamental fairness in procedure. Substantive due

52 process requires that legislation be reasonable and not arbitrary or

capricious.”) (citation omitted).

¶ 89 Whether lifetime sex offender registration violates due process

is a question of law subject to de novo review. See People in Interest

of C.J., 2017 COA 157, ¶ 25.

B. T.B. Has Not Identified a Liberty Interest or a Fundamental Right

¶ 90 I start with this issue because “[t]he requirements of

procedural due process apply only to the deprivation of interests

encompassed by the Fourteenth Amendment’s protection of liberty

and property.” M.S., ¶ 10 (quoting Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 569 (1972)). In other words, absent a “denial of

a liberty or property interest . . . the government does not have to

provide procedural due process.” Id.

¶ 91 Likewise, under substantive due process, a statute that

infringes on a fundamental right must be narrowly tailored to serve

a compelling state interest. Jones v. Samora, 2016 COA 191, ¶ 72.

But in the absence of a fundamental right, the applicable standard

of review for a substantive due process challenge is rational basis.

Ferguson v. People, 824 P.2d 803 (Colo. 1992). And rational basis

53 review “is especially deferential to legislative choice.” Culver v. Ace

Elec., 971 P.2d 641, 646 (Colo. 1999).

¶ 92 T.B. argues that CSORA “harms the reputation of juvenile

registrants by branding them as sex offenders and making public

juvenile offenses that otherwise would be kept private.” But he

cites neither United States Supreme Court nor Colorado authority,

and I have not found any, recognizing reputation as a protected

liberty interest. To the contrary, “mere injury to reputation, even if

defamatory, does not constitute the deprivation of a liberty

interest.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003);

accord Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299, 306 (Colo.

1992) (“[I]njury to reputation alone, absent some additional injury

to a right or status established by state law, does not constitute a

deprivation of any liberty or property interest . . . .”).

¶ 93 Nor does T.B. cite any binding federal precedent — much less

any Colorado authority — recognizing reputation as a fundamental

right. This lack of authority makes sense because courts should be

“reluctant to recognize new rights as fundamental.” Evans v.

Romer, 882 P.2d 1335, 1359 (Colo. 1994), aff’d, 517 U.S. 620

54 (1996); see also Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010)

(“[T]here is no fundamental right to one’s own reputation . . . .”).

¶ 94 Fundamental rights are liberties “deeply rooted in this Nation’s

history and tradition.” Moore v. City of East Cleveland, 431 U.S.

494, 503 (1977). A right to be free from sex offender registration

because it infringes on a juvenile’s reputation does not meet this

standard. See Vaughn v. State, 391 P.3d 1086, 1096 (Wyo. 2017)

(“[W]e conclude that juveniles who have been convicted of serious

sex offenses do not have a fundamental right to be free from the

registration and notification requirements . . . even if those require

information concerning them and their offenses to be disseminated

in limited ways and to potentially remain in place for life.”); see also

In re A.C., 54 N.E.3d 952, 962 (Ill. App. Ct. 2016) (“Respondent cites

no controlling case law establishing that a ‘deeply rooted’

fundamental right is violated by juveniles being subjected to the

registration or notification provisions at issue.”); Justin B., 799

S.E.2d at 681 (“A delinquent juvenile’s reputation may be in greater

need of protection than the reputation of an adult convicted of a

felony sex crime, but the juvenile’s interest in that reputation is still

neither liberty nor property.”).

55 ¶ 95 In sum, given the lack of precedent recognizing a juvenile’s

reputation as a liberty interest or a fundamental right, I decline to

do so here.

C. The Irrebuttable Presumption Doctrine Does Not Apply

¶ 96 T.B.’s due process arguments — both procedural and

substantive — assume that lifetime sex offender registration for

repeat juvenile sex offenders rests on an irrebuttable presumption

of “ongoing, lifetime recidivism.” See In re R.M., No. 666 EDA 2014,

2015 WL 7587203, at *25 (Pa. Super. Ct. Feb. 13, 2015) (“[A]n

irrebuttable presumption claim generally challenges both the

statute, i.e. the substance, and the procedure employed by the

statute.”). This assumption does not survive scrutiny.

¶ 97 True enough, “[s]tatutes creating permanent irrebuttable

presumptions have long been disfavored under the due process

clauses of the Fifth and Fourteenth Amendments to the United

States Constitution.” People in Interest of S.P.B., 651 P.2d 1213,

1217 (Colo. 1982). And when an irrebuttable presumption has

been used, the “most common remedy applied is requiring the

decision maker to permit rebuttal and thus to allow exceptions to

general rules.” Id.

56 ¶ 98 But in S.P.B., our supreme court explained that a “threshold

requirement for invocation of this remedy” is that the “case must be

appropriate for review under a heightened standard of scrutiny.”

Id. In other words, again a fundamental right or liberty interest

must be at stake.

¶ 99 This threshold requirement was met in In re J.B., 107 A.3d 1,

19 (Pa. 2014), on which T.B. relies. There, the court explained that

in Pennsylvania, “juvenile offenders have a protected right to

reputation.” Id. Unsurprisingly, given this right, the court held

that sex offender registration based on a “presumption of

recidivism” violates juvenile offenders’ due process rights. Id. at 19-

20. But as explained above, Colorado does not recognize reputation

as a fundamental right or a liberty interest.

¶ 100 Even if Colorado did recognize such an interest, however,

lifetime sex offender registration under CSORA is not based on an

irrebuttable presumption of future recidivism. Rather, it is based on

demonstrated past recidivism — juveniles who have been

adjudicated of more than one sex offense. See Doe v. Moore, 410

F.3d 1337, 1342 (11th Cir. 2005) (“Appellants argue that the Sex

Offender Act violates substantive due process by creating an

57 irrebuttable presumption of dangerousness,” but “the Sex Offender

Act here does not turn on the dangerousness of the offender, merely

the fact that he or she was convicted.”).

¶ 101 CSORA does not say anything about a juvenile’s risk of

recidivism or the juvenile’s current level of dangerousness. To the

contrary,

[t]he Colorado sex offender registry includes only those persons who have been required by law to register and who are in compliance with the sex offender registration laws. Persons should not rely solely on the sex offender registry as a safeguard against perpetrators of sexual assault in their communities. The crime for which a person is convicted may not accurately reflect the level of risk.

§ 16-22-110(8), C.R.S. 2018 (emphasis added).

¶ 102 Because the four cases on which T.B. relies all depend on

irrebuttable presumptions, expressly or by necessary implication,

they are distinguishable. See Vlandis v. Kline, 412 U.S. 441 (1973)

(out-of-state applicants could never become residents for tuition

purposes); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed fathers

could never be fit parents); Bell v. Burson, 402 U.S. 535 (1971)

(fault warranted suspension of driving privileges); City & Cty. of

Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977) (masseuse of

58 different sex than client will engage in illegal sex acts). Not so with

CSORA.

¶ 103 For these reasons, I decline to apply the irrebuttable

presumption doctrine to sex offender registration for repeat juvenile

sex offenders.

D. Lifetime Sex Offender Registration for Repeat Juvenile Sex Offenders Does Not Violate Procedural Due Process

¶ 104 T.B. argues that his due process rights were violated because

had “judicial discretion and individualized assessment been allowed

. . . [his] petition for removal from the sex-offender registry would

have been granted.” I read this argument as invoking procedural

due process.

¶ 105 Possibly recognizing the lack of a protected liberty interest,

T.B. instead relies on his “property interests by authorizing

law-enforcement agencies to charge $75 for initial registration and

$25 for subsequent registrations.” But “the protections offered by

procedural due process ‘are not as stringent when a deprivation of

property is involved as opposed to a deprivation of a personal

liberty.’” Colo. Ins. Guar. Ass’n v. Sunstate Equip. Co., 2016 COA

59 64, ¶ 54 (quoting Dewey v. Hardy, 917 P.2d 305, 308 (Colo. App.

1995)) (cert. granted Oct. 31, 2016).

¶ 106 T.B. cites no authority that a registration fee — as opposed to

a penalty — implicates due process. It does not. See Mueller v.

Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014) (“A fee is

compensation for a service provided to, or alternatively

compensation for a cost imposed by, the person charged the fee. By

virtue of their sex offenses the plaintiffs have imposed on the State

of Wisconsin the cost of obtaining and recording information about

their whereabouts and other circumstances. The $100 annual fee

is imposed in virtue of that cost, though like most fees it doubtless

bears only an approximate relation to the cost it is meant to offset.

A fine, in contrast, is a punishment for an unlawful act; it is a

substitute deterrent for prison time and, like other punishments, a

signal of social disapproval of unlawful behavior.”); see also

Kuhndog, Inc. v. Indus. Claim Appeals Office, 207 P.3d 949, 950

(Colo. App. 2009) (“The imposition of penalties constitutes a

deprivation of property and, therefore, implicates employer’s due

process rights.”).

60 ¶ 107 Unlike a penalty, under CSORA, “[t]he amount of the fee shall

reflect the actual direct costs incurred by the local law enforcement

agency in implementing the provisions of this article.”

§ 16-22-108(7)(a). And failure to pay the registration fee does not

result in criminal liability:

The local law enforcement agency may waive the fee for an indigent person. For all other persons, the local law enforcement agency may pursue payment of the fee through a civil collection process or any other lawful means if the person is unable to pay at the time of registration. A local law enforcement agency shall accept a timely registration in all circumstances even if the person is unable to pay the fee at the time of registration.

§ 16-22-108(7)(b).

¶ 108 But even if T.B. has asserted a protected property interest, his

due process argument ignores Colorado and Supreme Court

precedent that a juvenile “has no procedural due process right to a

hearing to prove a fact immaterial to the state’s statutory scheme

before being required to register as a sex offender.” People in

Interest of C.B.B., 75 P.3d 1148, 1151 (Colo. App. 2003).

¶ 109 In C.B.B., like here, the juvenile argued that he was denied

procedural due process because CSORA “does not provide a hearing

61 to determine whether an offender is currently dangerous.” Id. at

1149. The division disagreed. It held that a sex offender’s “current

level of dangerousness is immaterial under [CSORA] because his

duty to register was triggered solely by his conviction.” Id. at 1151;

see also Conn. Dep’t of Pub. Safety, 538 U.S. at 7 (determining that

procedural due process is satisfied where Connecticut sex offender

registration is based “on an offender’s conviction alone — a fact that

a convicted offender has already had a procedurally safeguarded

opportunity to contest”).

¶ 110 Especially in light of Connecticut Department of Public Safety, I

follow the division in C.B.B. and conclude that T.B. was not denied

procedural due process.

E. Lifetime Sex Offender Registration for Juveniles Does Not Violate Substantive Due Process

¶ 111 Finally, I reject T.B.’s arguments that lifetime sex offender

registration for juveniles is unconstitutional on its face and as

applied to him because it violates substantive due process.

¶ 112 Under the rational basis test, a statute is presumed to be

constitutional; the burden is on the party challenging the statute to

establish beyond a reasonable doubt that the statutory provision

62 lacks a rational relationship to a legitimate governmental interest.

Pace Membership Warehouse v. Axelson, 938 P.2d 504, 506 (Colo.

1997). In conducting this review, “we do not decide whether the

legislature has chosen the best route to accomplish its objectives.”

Dean v. People, 2016 CO 14, ¶ 13. Instead, “[o]ur inquiry is limited

to whether the scheme as constituted furthers a legitimate state

purpose in a rational manner.” Id.

¶ 113 As the United States Supreme Court has explained, “[s]tates

are not required to convince the courts of the correctness of their

legislative judgments” under a rational basis review. Minnesota v.

Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). “Rather, ‘those

challenging the legislative judgment must convince the court that

the legislative facts on which the classification is apparently based

could not reasonably be conceived to be true by the governmental

decisionmaker.’” Id. (quoting Vance v. Bradley, 440 U.S. 93, 111

(1979)); see FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)

(A rational basis “may be based on rational speculation

unsupported by evidence or empirical data.”); Bradley, 440 U.S. at

108 (“Even if the classification involved . . . is to some extent both

underinclusive and overinclusive, and hence the line drawn by

63 Congress imperfect, it is nevertheless the rule that in a case like

this ‘perfection is by no means required.’” (quoting Phillips Chem.

Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 385 (1960))). As

everyone would agree, this test “imposes an admittedly enormously

high bar for challengers seeking to invalidate perceived

unconstitutional statutes.” Parker v. Webster Cty. Coal, LLC, 529

S.W.3d 759, 771 (Ky. 2017).

¶ 114 Under these principles, “[a] statute can be stricken under the

rational basis standard only if there exists no reasonably

conceivable set of facts to establish a rational relationship between

the statute and a legitimate governmental purpose.” Lobb v. Indus.

Claim Appeals Office, 948 P.2d 115, 118 (Colo. App. 1997).

Importantly, while a statute might create “a harsh result in some

instances,” this “does not mean that the statute fails to meet

constitutional requirements under the rational basis standard.” Id.

¶ 115 So, the sole question I must answer is this: Does lifetime sex

offender registration for repeat juvenile sex offenders rationally

relate to a legitimate governmental purpose? My answer is “yes.”

64 ¶ 116 According to the Colorado Bureau of Investigation website,5

the goals of sex offender registration include enhancing public

safety, deterring sex offenders from committing similar crimes, and

providing an investigative tool for law enforcement. See Curtiss v.

People, 2014 COA 107, ¶ 8 (Sex offender registration “aid[s] law

enforcement officials in investigating future sex crimes.”); Jamison,

988 P.2d at 180 (“[R]egistration is required in order to aid law

enforcement officials in investigating future sex crimes and to

protect the public safety.”).

¶ 117 T.B. does not argue — nor could he — that requiring lifetime

sex offender registration for some adult offenders lacks a rational

relationship to these goals. See People v. Harper, 111 P.3d 482, 485

(Colo. App. 2004) (“[S]ex offenders have a ‘frightening and high’ risk

of recidivism, see McKune v. Lile, 536 U.S. 24, 34 (2002); Smith v.

Doe, 538 U.S. 84, 103 (2003) . . . .”).

¶ 118 Instead, he argues that the analysis changes when the

offender was a juvenile at the time of the offenses. This is so, he

continues, because lifetime registration for a juvenile is at odds with

5 Colorado Bureau of Investigation, Registration, https://perma.cc/HD4C-PYR4.

65 the juvenile justice system’s rehabilitative purpose and it is

“overinclusive because it impacts many juveniles . . . who are

unlikely to sexually offend as adults.” As to purported

overinclusiveness, according to T.B., research shows that “juveniles

adjudicated for sex offenses (even multiple sex offenses) are not

likely to sexually reoffend as adults.” 6

¶ 119 To be sure, the “overriding goal of the Children’s Code [is] to

provide guidance and rehabilitation to an adjudicated delinquent

child in a manner consistent with the best interests of the child and

the protection of society, ‘rather than fixing criminal responsibility,

guilt, and punishment.’” S.G.W. v. People, 752 P.2d 86, 91 (Colo.

1988) (quoting People in Interest of T.M., 742 P.2d 905, 907 (1987)).

Yet, to the extent that the Children’s Code affords special treatment,

T.B. received it in the underlying adjudication and sentencing. See

6 See Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 13 (2013) (“This research shows that juveniles adjudicated delinquent for sex offenses have extremely low rates of recidivism generally and even lower rates of sexual reoffense.”); Human Rights Watch, Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US 28 (May 2013), https://perma.cc/B3E9-AT5S (“[I]f a history of child sexual offending is used to predict a person’s likelihood of future sex offending, that prediction would be wrong more than nine times out of ten.”).

66 United States v. Juvenile Male, 670 F.3d 999, 1014 (9th Cir. 2012)

(“[A]dequate procedural safeguards at the conviction stage are

sufficient to obviate the need for any additional process at the

registration stage.”).

¶ 120 Further, requiring lifetime registration for certain juveniles

aligns with the goal of the juvenile justice system to protect society.

See In re J.W., 787 N.E.2d 747, 759 (Ill. 2003) (“Given the shift in

the purpose and policy of the Juvenile Court Act to include the

protection of the public from juvenile crime and holding juveniles

accountable, as well as the serious problems presented by juvenile

sex offenders, we find no merit to J.W.’s claim that requiring him to

register as a sex offender for life is at odds with the purpose and

policy of the Juvenile Court Act.”); In re M.A.H., 20 S.W.3d 860, 864

(Tex. App. 2000) (“Although we are aware that the juvenile justice

system is arranged with a special emphasis on the welfare of the

child, sex offenders present special problems. In answer, the

legislature enacted the registration . . . requirements in an apparent

attempt to strike a balance between the goals of providing for the

well-being of the child and protecting society from both the adult as

well as the youthful sex offender.”).

67 ¶ 121 And in any event, the Children’s Code is a legislative creation,

not implementation of a constitutional mandate. So, the General

Assembly remained free to depart from some of its broader

objectives in treatment of repeat juvenile sex offenders.

¶ 122 To the extent that research suggests some such juveniles

subject to the lifetime registration requirements might not present a

significant risk for recidivism, rational basis review in response to a

facial challenge does not demand “mathematical exactitude.” City

of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); see People v.

Parker, 70 N.E.3d 734, 755-56 (Ill. App. Ct. 2016) (“While not every

offender is necessarily inclined to commit another sex offense,

subjecting that group as a whole to certain restrictions does serve a

legitimate state purpose which the SORA Statutory Scheme is

rationally related to achieving, even though it may not be ‘finely-

tuned’ to do so.” (quoting People v. Avila-Briones, 49 N.E.3d 428,

451 (Ill. App. Ct. 2015))). Thus, the “mere failure of a governmental

regulation to allow all possible and reasonable exceptions to its

application is not sufficient to render the regulation

unconstitutional.” Colo. Soc’y of Cmty. & Institutional Psychologists,

Inc. v. Lamm, 741 P.2d 707, 712 (Colo. 1987); see People v. Pollard,

68 54 N.E.3d 234, 247 (Ill. App. Ct. 2016) (“Although the [sex offender

registration] Statutory Scheme may be overinclusive, thereby

imposing burdens on offenders who pose no threat to the public

because they will not reoffend, there is a rational relationship

between the registration, notification, and restrictions of sex

offenders and the protection of the public from such offenders.”).

¶ 123 But what about T.B.’s argument that whatever may be true

about other juveniles, his risk of sexually reoffending has been

determined to be low and possibly zero? As discussed in Part II.B

above, this argument ignores reasons beyond recidivism for

requiring lifetime juvenile sex offender registration, such as

deterring potential future offenders other than the recidivist 7 and

providing an investigative tool for law enforcement. These interests

remain unchanged regardless of the sex offender’s age or likelihood

7 T.B. conflates “general deterrence” of all citizens with “special deterrence” of the particular offender. See People v. Martin, 897 P.2d 802, 804 (Colo. 1995); see also United States v. Under Seal, 709 F.3d 257, 265 (4th Cir. 2013) (“[A]ny number of governmental programs might deter crime without imposing punishment. To hold that the mere presence of a deterrent purpose renders such sanctions ‘criminal’ would severely undermine the Government’s ability to engage in effective regulation.” (quoting Smith v. Doe, 538 U.S. 84, 102 (2003))).

69 to reoffend. See J.W., 787 N.E.2d at 758 (“The public interest is to

assist law enforcement in the protection of the public from juvenile

sex offenders. The Registration Act as applied to a 12-year-old child

serves that public interest by providing police officers ready access

to information on known juvenile sex offenders.”); Vaughn, 391 P.3d

at 1096 (“In protecting the public, [juvenile sex offender

registration] aids in the prevention, avoidance, and investigation of

future sex offenses.”); see also People v. Stevens, 91 N.Y.2d 270,

274-75 (N.Y. 1998) (identifying legislation’s goals to protect the

community from the dangers of recidivism by sex offenders, and to

assist law enforcement in the investigation and prosecution of sex

offenders); Doe v. Miller, 886 A.2d 310, 316 (Pa. Commw. Ct. 2005)

(“Information on class members is gathered in order to protect

against future offenses and to facilitate future investigations,

thereby enhancing public safety and welfare.”), aff’d, 901 A.2d 495

(Pa. 2006).

¶ 124 The General Assembly also could have concluded that the

public has a legitimate interest in knowing the location of repeat sex

70 offenders — regardless of their likelihood of recidivism. 8 See Smith,

538 U.S. at 101 (“The State makes the facts underlying the offenses

and the resulting convictions accessible so members of the public

can take the precautions they deem necessary before dealing with

the registrant.”). That the public may overreact to this information

is not a rational basis defect. Cf. State v. Imburgia, 2007-Ohio-390,

¶ 26, 2007 WL 274419, *4 (Ohio Ct. App. Feb 1, 2007) (“[T]he

courts have no control over public reaction and any reprisal by a

citizen certainly cannot be considered a ‘penalty’ which the court

has imposed.”). And apart from enforcing constitutional limitations,

“we may not substitute our judgment for that of the [General

Assembly] as to the wisdom of the legislative choice.” People v.

Zinn, 843 P.2d 1351, 1354 (Colo. 1993).

¶ 125 Given all of this, I reject T.B.’s claim that lifetime sex offender

registration for repeat juvenile sex offenders violates substantive

8 The legislature need not have expressed this reason in enacting sex offender registration legislation to survive rational basis scrutiny. See United States v. Osburn, 955 F.2d 1500, 1505 (11th Cir. 1992) (“[A]ny rationale Congress ‘could’ have had for enacting the statute can validate the legislation, regardless of whether Congress actually considered that rationale at the time the bill was passed.”).

71 due process on its face or as applied to him, even in light of the

district court’s determination on his risk of reoffending. T.B.’s

arguments in favor of allowing all juveniles to petition for

discontinuing registration raise policy considerations better weighed

by the General Assembly. See Ruybalid v. Bd. of Cty. Comm’rs,

2017 COA 113, ¶ 18 (“[M]atters of public policy are better addressed

by the General Assembly,” not this court.) (cert. granted Apr. 30,

2018); In re Welfare of C.D.N., 559 N.W.2d 431, 435 (Minn. Ct. App.

1997) (“[W]e respectfully invite the legislature to review the

prudence of requiring all juveniles adjudicated for criminal sexual

conduct to register as predatory sexual offenders.”).

¶ 126 I would affirm the order.