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June 28, 2021

Colorado Supreme Court rules mandatory lifetime sex offender registration violates the Eighth Amendment's prohibition on cruel and unusual punishment

A helpful reader made sure I saw an interesting ruling, handed down today by a 6-1 vote, from the Colorado Supreme Court in People in the Interest of T.B., 2021 CO 59 (Colo. June 28, 2021) (available here).  Here is how the majority opinion starts:

T.B. committed two sexual offenses as a minor — the first when he was eleven years old and the second when he was fifteen.  Because he was twice adjudicated delinquent for unlawful sexual behavior, the Colorado Sex Offender Registration Act, §§ 16-22-101 to -115, C.R.S. (2020) (“CSORA”), requires T.B. to register as a sex offender for the remainder of his natural life.  Now an adult, T.B. seeks review of the juvenile court’s denial of his petition to deregister, arguing that CSORA’s mandatory lifetime sex offender registration requirement for offenders with multiple juvenile adjudications violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  We agree.

Mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before reaching adulthood.  But a wealth of social science and jurisprudence confirms what common sense suggests: Juveniles are different.  Minors have a tremendous capacity to change and reform.  As such, mandating lifetime sex offender registration for juveniles without providing a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the Eighth Amendment.  Accordingly, we affirm in part and reverse in part the judgment of the court of appeals and remand with instructions to order a new hearing on T.B.’s petition to deregister.

As the T.B. opinion notes, the Ohio Supreme Court has issued a similar ruling some years ago and top courts in Pennsylvania and New Jersey have found due process problems with mandatory juve sex offender registration.  As the T.B. opinion also notes, the Colorado General Assembly recently passed a bill to eliminate mandatory lifetime sex offender registration for offenders with multiple juvenile adjudications, so the state likely will not have an interest in pursuing any appeal of this ruling.

June 28, 2021 at 03:27 PM | Permalink


I worked on the Sex Offender Registry case of a Maryland man who moved to Kentucky after serving his 180 day jail sentence for Statutory Rape in Maryland (the sex was consensual). His Maryland sentencing Order specified that he would serve 10 years on Maryland's Sex Offender Registry. After he moved to Kentucky, he complied with Ky. law and registered as a S.O. in Kentucky. Kentucky's statute provides for only two possible durations on the S.O. Registry for adults -- 20 years and life. Kentucky advised our client that he would have to remain on the S.O. Registry for LIFE! Sheriffs come to his home to check on him and make sure he still lives at his home address every 90 days. After he had been on the Registry for more than the 10 years specified in his Maryland sentencing Order, we filed a Petition to terminate his S.O. Registration. We argued that kentucky ust give FULL FAITH and CREDIT to his Maryland sentencing Order, which specifies only 10 years. The Circuit Judge refused and held that if he lives in Ky. he must comply with Ky.'s S.O. laws, regardless of what the Maryland setencing Order says. The client declined to appeal. It's a disturbing case. This man's only other criminal conviction in 60+ years of life is one DUI when he was 21 years old. He was a decorated Army Major, who worked in electronic signals intelligence and had a very high security clearance. He is now 17 years past his conviction for statutory rape. Ironically, he is considering moving back to Maryland, where he would no have to register, because he is long past the 10 year period specified in his Sentencing Order.

Posted by: Jim Gormley | Jun 29, 2021 8:43:15 AM

Even I have problems using what someone does when they are eleven against them much past that point. Fifteen, though, is a different matter. I simply see the bar for criminal responsibility being much lower than the thought processes of a mature adult and so reject this entire move of excusing based on "but their brains are still developing".

Posted by: Soronel Haetir | Jun 29, 2021 11:56:50 AM

All Sex Registries are ex-post facto punishment, are cruel and unusual, are un-Constitutional, and also do absolutely nothing to keep the public safe. In fact, all registries do the opposite. Not only do they put the life of the registrant in constant danger (which is in itself making the entire community less safe), they make it much more difficult for him or her to re-integrate into the community and society (thus making the community less safe).

They are a pointless exercise in good old American Puritanism. Hey, if you don't have a Registry for Murderers, you don't get to have one for Sex Offenders.

All registries should be deemed un-Constitutional immediately now and forever.

Posted by: restless94110 | Jun 29, 2021 10:36:01 PM

restless94110 ,

I fully understand the ex-post issues surrounding having to register for offenses committed before the registry came into being (even if SCOTUS came to a different conclusion) but not when the registry predates the offenses. Care to explain?

Posted by: Soronel Haetir | Jun 30, 2021 11:39:30 AM

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