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Colorado Appeals Court Raises 8th Amendment Concerns Regarding Mandatory Sex Offender Registration for Juvenile Offenders

Posted on: July 1st, 2019 by Art Leonard No Comments

In a startling turn of events, a three-judge panel of the Colorado Court of Appeals rejected many years of its own precedents on June 20 when it ruled in People of the State of Colorado, In the Interest of T.B., Juvenile, 2019 WL 2528764, that imposing a lifetime sex offender registration requirement on a young person whose sex-related crimes were committed when he was a minor is a form of punishment, so before imposing it a court must determine whether it violates the minor’s 8th Amendment rights.  Writing for the majority of the panel, Judge Craig R. Welling did not specify the offenses for which T.B. was convicted, merely describing them as “unlawful sexual behavior.”

T.B. was adjudicated for “unlawful sexual contact” at age 12 in 2001, and in 2005 he pleaded guilty to a sexual assault charge.  He successfully completed the probation to which he was sentenced as well as offense-specific treatment.  Although the court does not go into the details of his offenses, the fact that he was not sentenced to confinement suggests that the crimes were not violent.  He has no other criminal record apart from the two sex offenses.  He filed a pro se petition in 2010 to discontinue the registration requirement, reporting that he had “successfully completed the terms and conditions of my sentence related to that offense” and that “I have not been subsequently convicted or adjudicated a juvenile delinquent for any offense involving unlawful sexual behavior.”  The trial judge granted T.B.’s petition as to the 2000 case, but concluded that by statute he could not be relieved of the registration requirement because he was a repeat offender. This was despite the court’s finding that T.B. “has earned the right not to have to register” and “he is not a risk to sexually reoffend.”  T.B. eventually obtained counsel, Gail K. Johnson and Katherine C. Steefel of Johnson & Klein, PLLC, Boulder (CO), and filed a second petition, claiming that lifetime registration violated his due process and 8th Amendment rights.  The court rejected his constitutional arguments, relying on People in the Interest of J.O., 383 P.3d 69 (Colo. Ct. App., 2015), which held that registration does not impose a punishment, rendering the due process and 8th Amendment arguments irrelevant.

The Colorado Sex Offender Registration Act requires that juveniles who are twice adjudicated for unlawful sexual behavior categorically must register as sex offenders for life.  Responding to T.B.’s appeal, a majority of the three-judge Court of Appeals rejected the precedent of Interest of J.O. and earlier similar holdings.  Judge Welling pointed out that T.B.’s petition requires a two-step analysis: first, whether registration is a punishment, and second, whether imposing registration is “cruel and unusual.”  In this as in past cases raising the issue, the trail court had never gotten to an analysis of evidence as to whether the requirement is cruel and unusual, having been stopped at the first step by the court’s holding that registration is not a punishment, rendering the 8th Amendment irrelevant.  The court decided that this question could arise both in terms of whether the statutory provision is facially unconstitutional, or whether it is unconstitutional as applied, and decided that it was appropriate to remand to the trial court to make the initial determination after an appropriate factual inquiry.

Prior rulings had focused on the civil nature of the requirement, but the court agreed with T.B.’s argument that it was possible that the punitive effect of the requirement could override its civil intent, while noting that the legislative history includes comments by legislators that would support their understanding about the punitive nature of such a requirement.  Judge Welling described a seven-factor analysis that had been proposed by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to determine whether a requirement conceived by the legislature as civil should be deemed punitive.  The factors are: “(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether the court imposes the sanction only upon a particular finding of scienter; (4) whether its operation will promote the traditional aims of punishment; (5) whether the behavior to which it applies is a crime; (6) whether there is a rational connection to a nonpunitive purpose; and (7) whether it appears excessive in relation to the nonpunitive purpose.”

Applying the Mendoza-Martinez factors, the court concluded that several support T.B.’s argument that registration may be punitive in his case.  First, the court found, “the effect of requiring a juvenile to register as a sex offender for life is reminiscent of traditional forms of punishment.  The dissemination of information that is then used to humiliate and ostracize offenders can resemble forms of punishment that historically have been used to ensure that offenders cannot live a normal life.”  The court also noted that because juvenile proceedings are sealed, information about them is generally not available to the public, but the registration requirements makes them available to the public.  On this point, the court distinguished U.S. Supreme Court rulings that sex offender registration is not punitive, noting that all those cases involved adult sex offenders, the records of whose convictions “are presumptively public.”  This means that, although the Colorado register of juvenile sex offenders is not listed on the internet, the information is available to anybody who is doing a background check on T.B. in connection with a job application, since “any member of the public may request and obtain from his or her local law enforcement agency a list of sex offenders” that would include juvenile offenders.  At the hearing on T.B.’s petition, his parole officer (who was supporting his request) testified that “information about T.B.’s status as a sex offender could still show up in a background check and be the basis for T.B. losing an apartment or being fired from a job.

Judge Welling noted the U.S. Supreme Court’s recognition that “juveniles are different from adults for the purposes of the 8th Amendment,” and commented that “this differentiation is particularly acute when considering the consequences that juveniles face when they are required to register as sex offenders.”

Moving to another Mendoza-Martinez factor, Welling found that the “lifetime registration requirement promotes the traditional aims of punishment – ‘retribution and deterrence.’”  Furthermore, the behavior to which the registration provision applies “is already a crime,” he wrote, continuing, “For juveniles, CSORA’s lifetime registration requirement sweeps in only those who have been adjudicated for committing past crimes – and, once the requirement to register for life is imposed, it does so without regard to whether he or she is likely to reoffend.”  This also supports the contention that it is punitive in nature.

“The final two factors – whether there is a rational connection between the sanction and its stated nonpunitive purpose and whether the statute is excessive given that purpose – must be considered together,” wrote Welling.  While conceding that there is a connection to public safety, Welling concluded, the question is whether the requirement is excessive “given the important public safety justifications at issue,” and here, he pointed out, “a growing number of states have concluded that lifetime registration requirements similar to CSORA’s are excessive as applied to juveniles considering their nonpunitive purpose.”  He cited an quoted from decisions by several other state appellate courts on this point, while conceding that several opinions from other states rejected the contention of excessiveness.  On balance, the majority of this panel was more persuaded by the opinions finding excessiveness, concluding that “requiring a juvenile, even one sho has been twice adjudicated for offenses involving unlawful sexual behavior, to register as a sex offender for life without regard for whether he or she poses a risk to public safety is an overly inclusive – and therefore excessive – means of protecting public safety.  That overinclusiveness is exemplified in this case,” as the juvenile court found that T.B. was unlikely to reoffend.  Thus, the rational connection between the requirement and the nonpunitive public purpose was questionable, and the registration requirement, at least in T.B.’s case, arguably functions as a punishment.

But, the court concluded, the question whether imposing the requirement is “cruel and unusual punishment” remains to be determined, since it requires a “fact-intensive inquiry” and is “best addressed by the trial court in the first instance.”  Although T.B. submitted some evidence on this point, the state did not offer rebuttal testimony, content to rest on the solid precedent rejecting application of the 8th Amendment to registration requirements.  Similarly, because of the Colorado precedent holding registration to be nonpunitive, the trial judge never rendered a conclusion on the merits of the claim that imposing it was “cruel and unusual punishment.”  A remand is required for such a determination.  On another point, the court noted T.B.’s argument that the statute “creates an impermissible irrebuttable presumption that a previous offender will offend again and, therefore, remains a danger to the community forever,” but asserts that T.B.’s briefing failed to articulate the constitutional basis for that argument, and refrained from addressing it on the merits.

Dissenting Judge John R. Webb rejected the court’s analysis, reiterated the significance of repeated past holdings that the registration requirement is not punitive, and noting that the requirement in this case is authorized by statute, the legislature could amend or repeal it.  “Because relatively recent United States Supreme court cases imposing constitutional limitations on juvenile sentencing deal with palpable punishements – the death penalty and life without possibility of parole,” Webb wrote, “those cases 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.  Reaching an issue not address by the majority, I further conclude that the requirement does not violate due process, either on its face or as applied to T.B.  Both the majority’s heavy reliance on out-of-state authority and T.B.’s contrary policy arguments are better addressed by the General Assembly or our supreme court.  Therefore, and with respect, I dissent.

The immediate question is whether the State will appeal this ruling to the Colorado Supreme Court and, if need be, to the U.S. Supreme Court, as it raises a question of federal constitutional interpretation.  Judge Welling’s opinion notes that appellate courts of other states are divided on the question, which would provide a strong basis for the U.S. Supreme Court to grant a cert petition on the issue.

Federal Court Says Old Sodomy Conviction Cannot Be Basis for Current Sex Offender Registration Requirement

Posted on: December 16th, 2013 by Art Leonard No Comments

Finding that prosecuting a man for failing to register as a sex offender on the basis of an old conviction under an unconstitutional sodomy law would be “unthinkable,” U.S. District Judge Amy Totenberg granted a writ of habeas corpus to Charlton Green on December 9, directing that the State of Georgia release him from the obligations of probation to which he had been sentence.

Green, then age 20, and three friends, another young guy and two young women, were fooling around in a hotel room, and Green and the other guy got into sex.  This happened in Georgia in 1997, at which time the Georgia sodomy law was still in effect. It had been challenged in the U.S. Supreme Court in 1986 in the case of Bowers v. Hardwick, but the Supreme Court rejected the challenge.

Somehow, Charlton’s activity came to the attention of the police, and he was charged with violating the sodomy law.  He pled guilty, and was initially sentenced to probation as a first offender, but he violated the terms of probation and was convicted and sentenced in January 1999.  (By that time, the Georgia Supreme Court had declared, In Powell v. State (1998), that the state’s sodomy law was unconstitutional as applied to private, adult consensual activity, but evidently this made no difference to the court that sentenced Charlton in January 1999.)  Part of his sentence was to be designated as a sex offender and required to register with local law enforcement authorities wherever he was living.   Several years later, in 2003, the U.S. Supreme Court, ruling in a case involving the Texas Homosexual Conduct Law, overruled its 1986 decision in Bowers v. Hardwick, holding that private, adult consensual same-sex activity was protected under the Due Process Clause and could not be made the subject of criminal prosecution.  In 2003, the Court said that Bowers v. Hardwick was “wrong when it was decided.”

This means, logically, that in 1997 Charlton Green had pled guilty under an unconstitutional statute.

Dial forward to 2009.  Green’s mother fell ill with cancer, and he moved to her home to help care for her.  Contacting the local sheriff to register his presence slipped his mind.  But he was indicted and convicted in May 2009 in the Cherokee County Superior Court for failing to register as a sex offender.  The sole basis of his being a sex offender, of course, was the 1997 guilty plea under the unconstitutional sodomy law.  In response to this conviction in May 2009, Charlton was sentenced to 30 years in prison, two to actually serve and 28 on probation.   Charlton’s attorney at the trial failed to raise the issue that the law under which he had been originally convicted was unconstitutional.   After his conviction, Charlton got a new attorney and sought a new trial, raising the unconstitutionality issue for the first time and arguing that he had ineffective assistance from counsel in the first proceeding.  The trial court denied the motion, and the Georgia Court of Appeals affirmed the denial, saying that he could not show he had been prejudiced because his conduct in that hotel room was not “private” and thus not within the protection of the Powell and Bowers rulings.  While Charlton’s appeal was pending, he applied to the Pickens County Superior Court to get his original sodomy convicted vacated, and Judge Brenda Weaver vacated the conviction, finding “that the undisputed evidence supports Mr. Green’s claim to the protections of Powell and Lawrence,” but the Georgia Court of Appeals reversed this ruling on grounds of procedural irregularity.

After relating all of this, U.S. District Judge Amy Totenberg wrote, “Thus, as it stands, Green remains subject to the reporting requirement of O.C.G.A. Sec. 42-1-12 based on his conviction under a law that has been deemed unconstitutional.  On that basis, he petitions for a writ of habeas corpus.”  Charlton has finished serving his two year sentence, but remains subject to the 28 year probation sentence, so he remains eligible to seek the writ as somebody whose liberty remains constrained by the state.

Judge Totenberg decided that for purposes of deciding this petition, it is essentially irrelevant that Charlton’s original conviction has not been vacated and is not subject to appeal at this time.  However, she concluded that it was clear that Green received ineffective assistance of counsel in 2009 when his lawyer failed to raise the unconstitutionality of the sodomy law as a defense to his prosecution for failing to register. “The state cannot give legal effect to a conviction under an unconstitutional criminal statute,” wrote Totenberg.  “Convicting Green for failing to register as a sex offender solely because he was previously convicted under the unconstitutional anti-sodomy statute would amount to ‘state-sponsored condemnation’ of constitutionally protected behavior” she continued, citing both Lawrence v. Texas and the recent 4th Circuit decision, MacDonald v. Moose, which struck down the Virginia sodomy law in reliance on Lawrence.

Totenberg also rejected the state trial court’s reasoning that by pleading guilty to the sodomy charges, Charlton Green had “waived his defense” including any future defense based on the unconstitutionality of the sodomy law.  She wrote that it would not “comport with fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized.”

The judge also rejected the state trial court’s conclusion that although Powell and Lawrence had changed the law, “those changes did not apply to this factual situation because the conduct was not ‘private.'”  The trial court was undoubtedly relying on old cases that have held that for sexual conduct to be private, it must occur in an enclosed place in which only the two participants are present.  Under this reasoning, group sex involving more than two participants or sex taking place where non-participants are observing cannot be considered to be taking place in “private.”  Judge Totenberg rejected that idea, citing a 2000 Georgia Court of Appeals decision, Mauk v. State, 529 S.E.2d 197, which said “a private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.”  By that standard, Totenberg found that the hotel room being used by the four young adults was a “private place.”  After citing prior Georgia cases holding that a hotel room is a “private place,” she wrote, “And the presence of two private, consenting observers does not transform the private act into a public one.  Here, the two women present in the hotel room during the sexual act were not random members of the public but personal friends.  While the Court recognizes that the presence of others might be relevant to the question of whether sexual conduct is private, the constitutional right to privacy of young adults engaging in consensual sexual conduct behind the closed doors of a hotel room is not vitiated by the simple fact that four people are in the room.”

She also anticipated any argument about the retroactivity of Powell and Lawrence, noting that Georgia courts had already accepted the proposition that “the rule established in Lawrence is a new rule of substantive law that may be applied retroactively to cases on collateral review.”  This would certain seem obvious from the Lawrence Court’s statement that Bowers v. Hardwick was wrong when it was decided, not just prospectively from 2003 on.

Totenberg drew an analogy to the Supreme Court’s ruling on interracial marriage in explaining why she was issuing a writ of habeas corpus to Green.  “Just as it is unthinkable that a conviction of miscegenation entered before Loving v. Virginia, 388 U.S. 1 (1967), was decided could be used after that decision to establish an element of a crime, so is it unthinkable that a conviction based on constitutionally protected private consensual sexual conduct entered before Powell or Lawrence was decided could be so used.  Counsel who fails to object to the use of an extant sodomy conviction that on its face raises serious concerns as to its constitutional validity has failed to provide effective assistance.”  Since Green did not have effective representation at his 2009 trial, his conviction had to be vacated.  Therefore, Totenberg both ordered that the conviction be vacated and that Green be “released from the sentence imposed,” and she ordered the State of Georgia to “take all actions necessary consistent with the holding of this Order.”

The lawyer who stuck with Green through this extended and time-consuming litigation and successfully argued for this relief is Stephen R. Scarborough.