The state Supreme Court announced on Monday its intention to hear the issue of whether mandatory, lifetime sex-offender registration constitutes cruel and unusual punishment under the Constitution for minors who offend multiple times.
T.B. is a juvenile who had to register as a lifetime sex offender under the Colorado Sex Offender Registration Act, which mandates the consequence for minors who offend twice. His first conviction was in 2001, at age 12, for unlawful sexual contact. For years later, T.B. pleaded guilty to sexual assault.
He attempted to de-register twice, shortly after turning 18 and then after turning 26. He cited the lifetime registration as a violation of the Eighth Amendment.
In June 2019, the Colorado Court of Appeals decided to send the case to juvenile court for resolution.
The divided 2-1 panel found that first, the registration for juveniles was indeed a punishment because it sought to accomplish the goals of traditional punishment — “retribution and deterrence.”
This was a departure from previous decisions of the appeals court, which had consistently held that registration was not punitive. In this instance, though, the majority recognized that there had never been any direction from the high court.
“Although our supreme court has not weighed in on the issue we are addressing today, we are not writing on a blank slate,” wrote Judge Craig R. Welling for himself and Judge Elizabeth L Harris. Because the juvenile court was operating under a different precedent, the appeals court majority returned the case to it to render a decision on the “cruel and unusual” nature of the lawsuit.
In the minority was Judge John R. Webb, who found that the U.S. Supreme Court had not sufficiently defined the nature of cruel and unusual punishment in this area. Existing cases, he wrote, “provide little guidance in answering the preliminary question whether mandatory registration is punishment at all. So, I discern insufficient reason to disavow our unanimous precedent.”
Webb pointed out that previous justifications for sex offender registrations included the need to aid law enforcement, not to punish the registrant by making his name public. “That the public may overreact to this information,” Webb wrote, “is not a rational basis defect.”