People ex rel. T.B.

• Decision Date: 28 June 2021
• Docket Number: Supreme Court Case No. 19SC690
• Citation: 489 P.3d 752
• Court: Colorado Supreme Court
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, IN the INTEREST OF T.B., Respondent/Cross-Petitioner

489 P.3d 752

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

I. Background

A. The Development of Sex Offender Registries and Their Applicability to Juveniles

1. Sex Offender Registries Nationally

¶3 Sex offender registries emerged relatively recently as a direct result of several well-publicized crimes involving child victims in the late 1980s and early 1990s. Nichols v. United States, ––– U.S. ––––, 136 S. Ct. 1113, 1116, 194 L.Ed.2d 324 (2016). In response to these incidents, states around the country began enacting sex offender registration laws. Id.³ Congress followed suit in 1994, enacting the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. See Pub. L. No. 103-322, § 170101, 108 Stat. 1796, 2038-42 (1994) (codified at 42 U.S.C. §§ 14071 -73) (repealed 2006).

¶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.

2. Sex Offender Registries in Colorado

¶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....