The Colorado Attorney General’s Office on Wednesday asked the state Supreme Court to find the lifetime registration requirement for repeat juvenile sex offenders constitutional, and to let the General Assembly decide whether the consequence is too severe.

“The question is not whether the legislature made a correct policy choice,” Senior Assistant Attorney General Joseph G. Michaels told the justices. “The decision today to require twice-adjudicated juveniles – which is to say, those convicted of two or more qualifying sexual offenses – to register for life is entirely a legislative one.”

At issue was the Colorado Sex Offender Registration Act, which requires the submission of personal information to the Colorado Bureau of Investigation for the sex offender registry. An adult or juvenile may need to register for the rest of their life, or they can petition a judge to discontinue registration.

However, the law prohibits adults from deregistering if they have two or more convictions for unlawful sexual conduct.

In the case under consideration, an adult identified as T.B. committed two sex offenses as a minor: one at age 11 and another four years later. He attempted to deregister after turning 18, and then again after 26 years of age. T.B. then challenged the lifetime registration requirement as a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.

“There is nothing my client can do to escape the shame and stigma of something that happened when he was 11,” Gail Johnson, the attorney for T.B., argued to the Supreme Court. “It affects him when he dates in his 20s. It affects him as he buys a house in his 30s. It affects him if he has children in his 40s and wants to go to school to pick them up or wants to go to a football game.”

She added: “It affects him if he’s 80 years old and he’s entering a retirement community, unless this statutory provision is ruled unconstitutional.”

The Sex Offender Registration Act has been the subject of multiple federal lawsuits from offenders also alleging cruel and unusual punishment. In August 2020, a three-member panel of the U.S. Court of Appeals for the 10th Circuit rejected that claim, finding that the registration requirement was not actually punishment. Because the legislature intended for the registry to help communities protect themselves, any “collateral consequence” from employers, landlords or others was beyond the scope of the court.

Mark Silverstein, legal director of the ACLU of Colorado, characterized the court’s reasoning as “a willful blindness. It enables and facilitates this private vigilantism.”

At oral argument, Colorado’s justices appeared willing to distance themselves from the federal ruling and similar decisions in other states because of a key difference: the person involved here committed his crimes as a minor.

“It seems to me that these cases signal that kids are different,” observed Justice William W. Hood, III.

“Can’t we take into account the difference between children and adults when determining if something is punishment,” asked Justice Melissa Hart, “such that lifetime registration without an ability to deregister could be punishment for a juvenile offender where it might not be punishment for an adult offender?”

“How is it not excessive to say every single juvenile, if they’ve committed two of these offenses as juveniles, have to register for life and never, ever, ever get a chance to deregister?” Justice Richard L. Gabriel echoed. He also asked Michaels whether the court should look at the effects on T.B. that Johnson mentioned about the personal, economic, or employment consequences of lifetime registration.

“Respectfully, Your Honor, no. And the reason it is no is that any of these effects that you mentioned,” responded Michaels, “are not the function of a state actor. If a landlord does not want a person to live in their house because they are a sex offender….what private actors do is private actors’ business.”

Hood signaled a discomfort with writing off any discrimination entirely that juvenile offenders may encounter for the rest of their lives.

“The regulation attaches to something he did when he was 11 years old. It’s just hard to get away from lifetime stigma and restraints that are imposed as a result of something that a child did when he was 11,” Hood said.

Michaels acknowledged the unease, but reiterated that the state-mandated registration was not punishment itself.

Johnson contended T.B.’s case was different from others in which the lifetime registration requirement was deemed constitutional, given that the situation for T.B. included a “trifecta”: mandatory registration, lifetime duration, involving a juvenile. Asked by Hood to respond to Michaels’ argument that it was not the court’s position to strike down the law, Johnson disagreed.

“Some policies are not just bad policies. They’re unconstitutional,” she said. “It is exactly this court’s role to review the laws that the legislature has passed and decide whether or not they meet constitutional standards. So labeling it a policy choice does not immunize any law from constitutional scrutiny of this court.”

She cited a 2012 decision from the Ohio Supreme Court finding unconstitutional a provision of the state’s sex offender registration law that included the same three elements as Colorado’s. Johnson also reported that 33 states do not require mandatory lifetime registration for repeat juvenile offenders, comparing it to similar numbers of states that outlawed the death penalty for intellectually disabled defendants and for juveniles. The U.S. Supreme Court has now outlawed both of those practices.

In T.B.’s case, the majority of a three-member Court of Appeals panel decided in 2019 that the lifetime registration requirement for juveniles went beyond community protection and operated more like punishment. The judges sent the case back to the juvenile court to determine whether the punishment was cruel and unusual.

Earlier in the proceedings, the Colorado Juvenile Defender Center based in Denver, the Juvenile Law Center in Philadelphia, and Children’s Rights in New York submitted a brief in support of T.B. They argued recidivism among minor sexual offenders is low, and that navigating other states’ requirements for registered sex offenders throughout their lifetimes can be a severe burden.

“Like the vast majority of individuals who offend sexually in their childhood, T.B. is not a risk to the community,” the groups wrote. “Requiring T.B. to register as a sex offender for the rest of his life sends a very different message to the public.”

Johnson agreed with those findings, telling the justices that children are less culpable, more impulsive, but also easier to reform or rehabilitate.

The justices acknowledged the tension between the state of the law and the real-world consequences of lifetime registration.

“I think you have a very powerful argument that the intent of this was not punitive,” Gabriel told Michaels. “But we have to look at the effects.”

The case is People in the Interest of T.B.