The Colorado Supreme Court concluded on Monday that lifetime sex offender registration is not cruel and unusual punishment because it is not “punishment.”

At the same time, two members urged lawmakers to heed the advice of the Sex Offender Management Board and adopt a new, more accurate system of measuring a person’s risk of recidivism.

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 were confronted with the question of whether lifetime registration still exhibits clear hallmarks of punishment.

No, they concluded.

The legal requirement to notify the community about sexually violent predators and the difficulty finding employment or housing, wrote Justice Brian D. Boatright, do not transform lifetime registration into punishment.

“Public shaming is typically understood to involve confrontation that is both ‘direct’ and ‘face-to-face,’ yet nothing in the community notification statute mandates such face-to-face confrontation,” he wrote in the April 27 opinion. “Additionally, any shaming that occurs via ‘vitriol and threats’ in the comment sections of social media posts is not government sponsored.”

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 had 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.

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 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 state’s justices during oral arguments.

Justice Richard L. 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.

“I have some concerns about the tools,” he said.

Assistant Attorney General Jaycey DeHoyos acknowledged the label of sexually violent predator “can be misleading. It can cause that sort of panic.” But she maintained that any public backlash “goes against the spirit of what I think this law is trying to accomplish.”

Boatright, in the majority opinion, noted that vitriolic commentary toward a defendants “does not transform community notification into ‘public shaming'” in a way that would suggest punishment. He also wrote that difficulties in finding housing or employment are “consequences stemming from the very nature of the underlying conviction,” not from the lifetime obligation to register.

Moreover, there is “a comparatively well-developed individualized risk assessment tool” that estimates a defendant’s risk of recidivism, Boatright continued.

Taken together, the requirements are a “civil regulatory means principally designed to keep a community safe by ensuring that community members can take the steps needed to keep themselves safe,” Boatright concluded.

Chief Justice Monica M. Márquez wrote separately for herself and Gabriel, observing the Sex Offender Management Board has warned the legislature that the tool used to designate someone a sexually violent predator does not do “a good job of accurate assessment of risk to reoffend.” The board also cautioned that mislabeling someone as high-risk can lead to unnecessary marginalization.

“I respectfully urge the legislature to review the relevant research and consider whether the SVP designation continues to serve its intended purpose,” she wrote.

The case is Beagle v. People.