The Colorado Supreme Court on Monday suggested the 25-year-old law governing criminal sentences for sex offenders might run afoul of the constitutional prohibition on cruel and unusual punishment when applied to juveniles serving lengthy terms of incarceration.

The ultimate question of whether the Sex Offender Lifetime Supervision Act, or SOLSA, is unconstitutional in the case of Omar Godinez will rest with the federal appeals court based in Denver. In an unusual move, the U.S. Court of Appeals for the 10th Circuit asked the state Supreme Court to answer whether SOLSA requires, permits or prohibits officials from considering Godinez’s maturity and rehabilitation when deciding whether to eventually release him on parole.

Maturity and rehabilitation for juvenile defendants are factors the U.S. Supreme Court has recognized as mandatory when considering release from incarceration. Godinez, who was 15 years old when Arapahoe County prosecutors charged him as an adult for a pair of rapes, argued SOLSA does not mandate that parole officials consider the constitutionally required factors.

SOLSA does not explicitly mention either maturity or rehabilitation for juvenile defendants. SOLSA instead charges officials with considering a person’s suitability for parole based on their progress in treatment, their threat to the community and their likelihood of reoffending. 

Nonetheless, Justice Richard L. Gabriel wrote in the Supreme Court’s March 11 opinion that the concept of rehabilitation is embedded within the law’s existing framework for evaluating a defendant’s suitability for release.

The same was not true, however, for a juvenile defendant’s maturity.

“Although, to be sure, some of the traits of a person who successfully completes a treatment program or who poses a low risk of reoffending when re-entering society may correlate, to a degree, with the characteristics of a mature person,” Gabriel noted, “sex offender treatment programs and sex offender risk assessments are not designed to measure developmental maturity.”

Godinez is currently serving 32 years to life pursuant to SOLSA, a 1998 law generally requiring indefinite sentences in prison for felony sex offenses. So far, his constitutional challenge to his sentence has been unsuccessful, with the state’s Court of Appeals upholding Godinez’s 2013 convictions and the state Supreme Court previously declining to hear his appeal.

Godinez then turned to federal court, arguing SOLSA’s application to him, as a juvenile offender, needed to account for his maturity and rehabilitation when the time came to decide on his release, as the U.S. Supreme Court recognized in its 2010 decision of Graham v. Florida.

U.S. District Court Senior Judge R. Brooke Jackson concluded Godinez was not entitled to relief because he saw nothing in SOLSA preventing parole officials from considering maturity and rehabilitation.

“Mr. Godinez apparently wants a guarantee that he will be paroled in his lifetime. However, a state is not required to guarantee eventual freedom to a juvenile offender,” Jackson wrote in 2022.

On appeal to the 10th Circuit, a three-judge panel speculated SOLSA’s mandate to consider recidivism and a person’s dangerousness might address Godinez’s rehabilitation.

But “where’s the maturity aspect in SOLSA?” asked Judge Carolyn B. McHugh during oral arguments. “Which means, when they committed the crime they weren’t fully formed in the frontal lobe. Where do you see that?”

First Assistant Attorney General John T. Lee responded that maturity could be “baked into” a person’s progress in sex offender treatment.

The 10th Circuit panel opted to let the state Supreme Court answer whether Godinez was correct in believing SOLSA does not require the government to consider the mandatory factors that prevent lengthy sentences for juveniles from turning into cruel and unusual punishment.

“To satisfy the Eighth Amendment, the SOLSA factors would need to encompass both maturity and rehabilitation in consideration of parole eligibility,” wrote Judge Timothy M. Tymkovich in presenting the question to the state Supreme Court.

Gabriel, writing for the court, explained parole officials are not limited to considering the specific criteria in SOLSA when making release decisions. But practically, the listed considerations — progress in treatment, threat to the community and likelihood of reoffending — do address the concept of rehabilitation.

Sex offender treatment programs “are rehabilitative by design,” Gabriel wrote. 

However, because maturity encompasses characteristics such as improved judgment, self-control, and a “stronger sense of responsibility,” SOLSA’s criteria do not fully account for that concept.

“Accordingly, we cannot say that an offender’s participation and progress in treatment programs or an offender’s positive risk assessments necessarily establish maturity,” Gabriel wrote.

Godinez’s appeal now returns to the 10th Circuit, where the appellate panel will make the final call about the constitutionality of his sentence. Jonathan D. Reppucci, the attorney representing Godinez, believed the decision indicates SOLSA “provides less than the Eighth Amendment requires.”

“If the 10th Circuit agrees, it will be incumbent upon Colorado’s General Assembly to develop an appropriate way to enforce the constitutional mandate,” he said.

Although Godinez’s case has implications for a small group of defendants — juveniles tried as adults for sex offenses — SOLSA is the target of multiple constitutional challenges elsewhere. Adult defendants are arguing the state’s inability to provide sex offender treatment in time for their parole eligibility dates is a violation of their constitutional rights. 

Two federal judges in Colorado recently signaled their support for that theory in a pair of ongoing lawsuits.

The case is Godinez v. Williams et al.