Colorado's sex-offender registry, already under legal siege, just took another hit.
On June 20, the Colorado Court of Appeals determined that the lifetime registration requirement for Coloradans found guilty of two or more sex offenses when they were juveniles qualifies as punishment under the Eighth Amendment. The 2-1 decision means that a lower court can now consider whether that rule is unconstitutional — and such a finding would strike another blow against a law-enforcement concept that's become increasingly controversial.
Back in August 2017, U.S. District Senior Judge Richard Matsch, who died last month, determined that the sex-offender registry in Colorado violated the due-process rights of three convicted sex offenders. The far-reaching implications of Matsch's move convinced Montrose County to pull its sex-offender registry offline because of lawsuit fears. Shortly thereafter, then-Colorado attorney general Cynthia Coffman appealed the ruling. At present, the case remains on appeal before the United States Court of Appeals for the Tenth Circuit.
In the current case, attorney Gail Johnson of Johnson & Klein, PLLC, notes that Colorado appellate courts had previously ruled that the Eighth Amendment didn't apply to lifetime juvenile registration because the act of registering didn't qualify as punishment. But Johnson, representing a client referred to in the document as T.B., begs to differ.
The ruling's summary notes that T.B. was twelve in 2001, when he was adjudicated for unlawful sexual contact; the crime, which he allegedly committed at age eleven, would have qualified as a Class 1 misdemeanor if he'd been an adult at the time. Then, in 2005, he was found guilty of sexual assault.
Five years later, after committing no other crimes and successfully completing probation and offense-specific treatment, T.B. asked to discontinue sex-offender registration in both cases, checking a box on a court petition stating, "I have successfully completed the terms and conditions of my sentence related to that offense. I have not been subsequently convicted or adjudicated as a juvenile delinquent for any offense involving unlawful sexual behavior."
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The juvenile court later determined that T.B. "has earned the right not to have to register" and "he is not a risk to sexually reoffend." But while his petition was granted in the 2005 sexual assault, it was rejected for the 2001 unlawful sexual contact because of the second offense.
In 2015, T.B., now 26, filed another petition to discontinue registration, arguing this time that having to remain on the registry for a lifetime for something he'd done as a child "violated due process and constituted cruel and unusual punishment" — and the juvenile court's rejection prompted a journey through the legal process that led to the Colorado Court of Appeals and its recent decision.
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Judge Craig R. Welling, writing for the majority, refers to a number of past rulings in explaining his conclusion, including the one rendered by Matsch. He also cites the U.S. Supreme Court action striking down mandatory sentences of life without the possibility of parole for juvenile killers, which has required resentencing for dozens of individuals in Colorado, including Erik Jensen, who can now seek parole after forty years served. (While Jensen's situation has technically improved, it's still being attacked for inequity, since he merely witnessed a murder and failed to intervene — and the friend who actually committed the crime has had his sentence commuted and will likely be freed next year.)
As Welling points out, "A growing number of states are revisiting whether sex-offender registration requirements are punitive." This list includes Pennsylvania, whose supreme court ruled in 2014 that its sex-offender registry for juveniles was unconstitutional.
The Colorado Court of Appeals decision means that the juvenile court that has twice told T.B. it won't remove him from the sex offender registry can think about his request differently this time. What happens then could move the entire concept of registration for sex offenders that much closer to extinction.