Members of the Colorado Supreme Court appeared wary last week of deeming lifetime sex offender registration “punishment,” even as they heard about the inescapable consequences for a person’s liberty and privacy.

Under Colorado law, “sexually violent predators” are subject to lifetime sex offender registration. To qualify, they must be 18 years or older, convicted of certain offenses, commit the offense against certain types of people and, finally, be “likely to subsequently commit one or more” sexual offenses.

Although the legislature has not deemed lifetime registration to be “punishment,” Colorado’s justices wondered during the Oct. 22 oral arguments whether it nonetheless bears hallmarks of punishment — and, therefore, whether it could be cruel and unusual punishment.

“No opportunity to get off the registry. Got to show up in person (four) times a year. There are fairly significant consequences here, and I question whether that matches to the non-punitive purpose,” said Justice Richard L. Gabriel.

“Don’t you think part of the problem,” asked Justice Brian D. Boatright, “is that it’s called ‘sexually violent predator?’ And violence really has nothing to do with how someone becomes — or should not enter into how someone is designated as — a sexually violent predator.”

Assistant Attorney General Jaycey DeHoyos acknowledged the label “can be misleading. It can cause that sort of panic.”

Timothy Paul Beagle pleaded guilty in Jefferson County to attempted sexual assault and distributing drugs to a minor. He did not have any prior sex crimes on his record, but a trial judge imposed lifetime registration on him.

Beagle argued the label amounted to cruel and unusual punishment in violation of the Eighth Amendment. Although the state Supreme Court in 2021 deemed mandatory lifetime registration for juveniles to be cruel and unusual, it has not reached that conclusion for adults. Moreover, the U.S. Supreme Court concluded in 2003 that Alaska’s sex offender registration law was not punishment because its goal was to advance “public safety.”

The Court of Appeals upheld Beagle’s designation, but acknowledged there was potential merit to his argument. In 2013, the Colorado Supreme Court noted in passing that such designations were not punishment. However, then-Justice Nathan B. Coats warned that if the court’s assumption was wrong, “there can be no question that the (sex offender sentencing) scheme would fail, for a host of constitutional, process-related reasons.”

On appeal, the ACLU of Colorado weighed in to support Beagle, arguing that lawmakers established the sexually violent predator designation in 1997 out of a belief that sex offenders posed a lifetime risk. However, scholarship suggests the risk of recidivism declines over time, with data from Colorado showing very few lifetime sex offender registrants committing new felonies.

“Something lasting for life is excessive when the current state of the science and the data shows the risk of recidivism doesn’t stay static for life,” public defender Kevin M. Whitfield told the justices during oral arguments.

Gabriel wondered if Beagle’s challenge actually implicated the accuracy of the existing tools to designate someone a sexually violent predator due to their risk, more so than the designation itself.

“It may not in reality be effective because the tools aren’t correct, and I have some concerns about the tools,” he said.

“Your whole argument seems to hang here on the fact that we have individualized assessment of risk going on,” echoed Chief Justice Monica M. Márquez to the government’s attorney. “But if we have concerns about the tools and the validity of the risk assessment, can we not take that into account in deciding whether this is punishment?”

A portion of the arguments focused on the community notification requirement for sexually violent predator designations, meaning announcements about registrants via social media, YouTube video or town hall-style community meetings.

“It seems like posting on Facebook is just a way to disseminate the information that’s already public,” said Justice Carlos A. Samour Jr.

“It is basically a government system that allows the community to face-to-face harass and shame,” responded Whitfield.

DeHoyos, of the Colorado Attorney General’s Office, countered that problematic online comments are widespread in any context.

“The comments are gonna be filled with vitriol. And it’s not acceptable. It definitely goes against the spirit of what I think this law is trying to accomplish,” she said. “But it’s not state action.”

Some justices were reluctant to see the designation as punishment, noting it would open the door to further questions. For example, would a jury have to make any specific findings before judges could impose the punishment?

“I confess being a little concerned about opening the floodgates,” said Márquez.

On the other hand, members of the court were more receptive to seeing lifetime registration for Beagle specifically to be disproportionate to his attempt offense and lack of sexual criminal history.

“Mr. Beagle seems to have been caught in this SVP net, in a way, based on circumstances that really look different than the kind of SVP assessments I saw when I was trial court judge,” said Justice Maria E. Berkenkotter. “Emphasis on predatory conduct, lots of grooming, lots of history, lots of sex offending. And Mr. Beagle’s circumstances seem different.”

Justice Melissa Hart was not present for the arguments. A spokesperson for the judicial branch said Hart was attending to personal matters.

The case is Beagle v. People.