     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 20, 2019

                                2019COA89

No. 16CA1289, People in Interest of T.B. — Criminal Law — Sex
Offender Registration — Juveniles — Petition for Removal from
Registry; Constitutional Law — Eighth Amendment — Cruel
and Unusual Punishments

     The Colorado Sex Offender Registration Act (CSORA), sections

16-22-101 to -115, C.R.S. 2018, requires that juveniles who are

twice adjudicated for unlawful sexual behavior must register as sex

offenders for life. In this Eighth Amendment challenge to CSORA, a

division of the court of appeals, with one judge dissenting, holds

that CSORA’s lifetime registration requirement is a punishment as

it applies to juveniles.

     Based on this conclusion, the division remands the case to the

juvenile court for further proceedings to take further evidence and

make findings on the issue of whether CSORA’s lifetime registration
requirement for juveniles constitutes cruel and unusual

punishment.
COLORADO COURT OF APPEALS                                       2019COA89


Court of Appeals No. 16CA1289
City and County of Denver Juvenile Court No. 01JD1407
Honorable D. Brett Woods, Judge
Honorable Karen M. Ashby, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of T.B.,

Juvenile-Appellant.


                           ORDER REVERSED AND CASE
                           REMANDED WITH DIRECTIONS

                                     Division III
                            Opinion by JUDGE WELLING
                                 Harris, J., concurs
                                 Webb, J., dissents

                             Announced June 20, 2019


Philip J. Weiser, Attorney General, Joseph G. Michaels, Senior Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee

Johnson & Klein, PLLC, Gail K. Johnson, Katherine C. Steefel, Boulder,
Colorado, for Juvenile-Appellant

Elizabeth Logemann, Denver, Colorado, for Amicus Curiae Colorado Juvenile
Defender Center and Children’s Rights
¶1    The Colorado Sex Offender Registration Act (CSORA), sections

 16-22-101 to -115, C.R.S. 2018, requires that juveniles who are

 twice adjudicated for unlawful sexual behavior must register as sex

 offenders for life. T.B. is one of those juveniles. He now appeals the

 denial of his petition to deregister, arguing that the statute’s

 requirement that he register as a sex offender for life for offenses

 that he committed as a juvenile constitutes cruel and unusual

 punishment. This court has repeatedly rejected similar claims,

 each time on the basis that sex offender registration is not a

 punishment. We, however, conclude that the lifetime registration

 requirement arising from juvenile adjudications constitutes a

 punishment and, therefore, remand the case for further proceedings

 to determine whether the punishment is unconstitutional.

                            I.   Background

¶2    In 2001, when T.B. was twelve years old, he was adjudicated

 for unlawful sexual contact, a class 1 misdemeanor if committed by

 an adult. In 2005, he pleaded guilty to sexual assault. Following

 the 2005 adjudication, he successfully completed probation and

 offense specific treatment. He has no other criminal record.




                                    1
¶3    In 2010, T.B. filed a pro se petition to discontinue sex offender

 registration in both cases. By checking a box on the petition, he

 represented that “I have successfully completed the terms and

 conditions of my sentence related to that offense. I have not been

 subsequently convicted or adjudicated a juvenile delinquent for any

 offense involving unlawful sexual behavior.”

¶4    Following an evidentiary hearing, the juvenile court found that

 T.B. “has earned the right not to have to register” and “he is not a

 risk to sexually reoffend.” Then the court granted the petition as to

 the 2005 case but concluded that discontinuing registration was

 not permitted in the earlier case because T.B. had a subsequent sex

 offense adjudication (i.e., the 2005 case).

¶5    Almost five years later, now twenty-six years old and

 represented by counsel, T.B. filed a second petition to discontinue

 registration. This time he argued that lifetime registration violated

 due process and constituted cruel and unusual punishment.

 Again, the juvenile court held a hearing. In a written order relying

 primarily on People in Interest of J.O., 2015 COA 119, the court

 rejected T.B.’s constitutional arguments and denied the petition.

¶6    T.B. appeals that denial.


                                    2
                          II.   Procedural Bar

¶7    Relying on cases decided under Crim P. 35(c), the People

 assert that T.B.’s constitutional arguments are procedurally barred.

 We disagree.

                         A.     Successiveness

¶8    Claims that could have been raised in a prior appeal are

 usually barred as successive. See Dunlap v. People, 173 P.3d 1054,

 1062 (Colo. 2007) (citing Crim. P. 35(c)); People v. Vondra, 240 P.3d

 493, 495 (Colo. App. 2010) (“Defendant could have challenged the

 district court’s factual findings and its conclusion that counsel was

 not ineffective on direct appeal, but chose not to do so.”). But we

 reject the Attorney General’s successiveness argument for two

 reasons.

¶9    First, the Attorney General’s successiveness argument

 assumes that cases decided under Crim. P. 35(c) should control

 this case. Unsurprisingly, such cases apply the mandate of Crim.

 P. 35(c)(3)(VI)-(VII) (“The court shall deny any claim that was raised

 and resolved in a prior appeal” or “could have been presented in an

 appeal previously brought.”). But T.B. never sought relief under




                                    3
  Crim. P. 35(c). Nor, for that matter, do we see how he could have

  taken this approach in pursuit of discontinuing registration.

¶ 10   Second, while it is accurate that the juvenile court twice

  denied T.B.’s petition to discontinue the registration requirement

  and T.B. did not appeal from the first denial, the Attorney General’s

  assertion that “[n]othing legal or factual has changed since the first

  ruling” is only partly true. The factual basis for seeking to

  discontinue registration was the same in both petitions — T.B. no

  longer posed a risk to sexually reoffend. But, as detailed in Part

  III.B.1.a below, the legal landscape involving juvenile sentencing in

  general and lifetime registration in particular has evolved

  substantially since T.B.’s first petition in 2010. See, e.g., Miller v.

  Alabama, 567 U.S. 460, 479 (2012) (extending Graham v. Florida,

  560 U.S. 48 (2010), and holding “that the Eighth Amendment

  forbids a sentencing scheme that mandates life in prison without

  possibility of parole for juvenile offenders” convicted of homicide);

  Graham, 560 U.S. at 73 (observing that just because a juvenile

  defendant “posed an immediate risk” at one point in his young life

  does not mean that he will “be a risk to society for the rest of his

  life”); State in Interest of C.K., 182 A.3d 917, 932-33 (N.J. 2018)


                                      4
  (collecting cases issued since 2012 where state courts of last resort

  have held that lifetime registration and notification requirements for

  juvenile sex offenders are unconstitutional).

¶ 11   Accordingly, we conclude that there is no successiveness to

  T.B.’s petition and this appeal. Cf. People v. Rainer, 2013 COA 51,

  ¶ 34 (concluding that a juvenile’s postconviction claim was not

  successive where it was based on Graham, which “established a

  new rule of substantive law which should be applied retroactively”),

  rev’d on other grounds, 2017 CO 50.

        B.    Abuse of Process and the Law of the Case Doctrine

¶ 12   The Attorney General characterizes T.B.’s appeal “as an abuse

  of process” because he “did not challenge or appeal the first order

  denying his motion.” Of course, abuse of process may be asserted

  to prevent perpetual review. Dunlap, 173 P.3d at 1062. But below,

  the prosecution did not raise abuse of process. Thus, it is not

  available here. See People v. Sherman, 172 P.3d 911, 915 (Colo.

  App. 2006) (“In this case, the People did not plead or prove an

  abuse of process in the trial court. Hence, this affirmative defense

  is not available.”).




                                    5
¶ 13   The law of the case doctrine doesn’t bar our review either.

  “Whether the law of the case . . . applies to bar the litigation of an

  issue is a question that we review de novo.” Jones v. Samora, 2016

  COA 191, ¶ 46. That doctrine applies “to the decisions of an equal

  court or a different division of the same court.” Vashone-Caruso v.

  Suthers, 29 P.3d 339, 342 (Colo. App. 2001). Thus, the juvenile

  court could’ve denied T.B.’s second petition on this basis alone.

  But because no other division of this court has addressed T.B.’s

  first petition, we are not so limited. Having disposed of the Attorney

  General’s procedural arguments, we now turn to the merits.

                               III.   Analysis

¶ 14   T.B. contends that when applied to juveniles, automatic

  lifetime registration under CSORA for repeat offenders violates the

  Eighth Amendment’s prohibition against cruel and unusual

  punishment. But before discussing the constitutional implications

  of T.B.’s argument, it is helpful to briefly discuss the relevant

  portions of CSORA.

               A.    Treatment of Juveniles Under CSORA

¶ 15   Juveniles who have been adjudicated for unlawful sexual

  behavior must register as sex offenders. § 16-22-103(4), C.R.S.


                                      6
  2018 (“The provisions of this article 22 apply to any person who

  receives a disposition or is adjudicated a juvenile delinquent based

  on the commission of any act that may constitute unlawful sexual

  behavior or who receives a deferred adjudication based on

  commission of any act that may constitute unlawful sexual

  behavior . . . .”). Juvenile sex offenders must adhere to the same

  registration requirements as adult sex offenders except that a

  juvenile’s sex offender status is not posted on the Colorado Bureau

  of Investigation’s website. § 16-22-111(1)(c), C.R.S. 2018 (providing

  that the Colorado Bureau of Investigation (CBI) website shall

  include information about sex offenders who “[have] been convicted

  as an adult” of specific offenses involving unlawful sexual behavior).

¶ 16   The registration requirement lasts for the rest of an

  individual’s life or until the court enters an order discontinuing the

  registration requirement. See § 16-22-103. Before the court can

  enter such an order, an affected individual must file a petition to

  discontinue the registration requirement. See § 16-22-113, C.R.S.

  2018. In determining whether to grant a petition to discontinue

  registration, the juvenile court is guided by a single criterion:




                                     7
  whether the person is “likely to commit a subsequent offense of or

  involving unlawful sexual behavior.” § 16-22-113(1)(e).

¶ 17   Under CSORA, however, certain individuals are not even

  permitted to file a petition to discontinue the registration

  requirement. § 16-22-113(3). Included among those who are not

  permitted to file a petition are adults who have “more than one

  conviction or adjudication for unlawful sexual behavior.” § 16-22-

  113(3)(c). This is problematic for T.B. because he is an adult whose

  record includes two juvenile adjudications for unlawful sexual

  behavior. So, T.B. is not entitled to petition to discontinue his

  registration requirement, even though he committed his crimes as a

  juvenile, unless the registration requirement, as applied to him, is

  unconstitutional. That is where we turn next.

                      B.     Constitutional Challenge

¶ 18   We review constitutional challenges under the Eighth

  Amendment de novo. People v. McCulloch, 198 P.3d 1264, 1268

  (Colo. App. 2008) (“[A]ppellate scrutiny of an Eighth Amendment

  challenge is de novo.”).

¶ 19   The Eighth Amendment prohibits “cruel and unusual

  punishments,” U.S. Const. amend. VIII, and “guarantees


                                     8
  individuals the right not to be subjected to excessive sanctions,”

  Roper v. Simmons, 543 U.S. 551, 560 (2005). This right “‘flows from

  the basic “precept of justice that punishment for crime should be

  graduated and proportioned”’ to both the offender and the offense.”

  Miller, 567 U.S. at 469 (citations omitted).

¶ 20   Analyzing any statute under the Eighth Amendment involves a

  two-part inquiry. First, a court must determine whether the statute

  imposes a punishment. J.O., ¶ 30. If no punishment is imposed,

  we need not venture further because the Eighth Amendment is not

  implicated. Id. (If “requiring juvenile sex offenders to register does

  not constitute punishment under the Eighth Amendment, [the

  court] need not address whether registration is cruel and

  unusual.”). 1 If, on the other hand, the statute does impose a

  punishment, the court must then decide whether that punishment

  is cruel and unusual. Id. So first, we must consider whether

  requiring a twice-adjudicated juvenile to register as a sex offender

  for life constitutes a punishment. We conclude it does.




  1As discussed in more detail in Part III.B below, this is the step at
  which the juvenile court terminated its analysis.

                                     9
                            1.    Punishment

¶ 21   To decide whether a statute creates a punishment, a court

  must first “ascertain whether the legislature meant the statute to

  establish ‘civil’ proceedings.” Smith v. Doe, 538 U.S. 84, 92 (2003)

  (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). This is so

  because if the legislature intended to impose punishment, “that

  ends the inquiry.” Id.; see also Kennedy v. Mendoza-Martinez, 372

  U.S. 144, 169 (1963) (noting that “a detailed examination” of the

  statute “is unnecessary” where “the objective manifestations of

  congressional purpose indicate conclusively that the provisions in

  question can only be interpreted as punitive”).

¶ 22   There is some textual indication in CSORA that the legislature

  recognized that the registration requirement may be punitive, at

  least as it applies to juveniles. Specifically, among the factors a

  juvenile court must consider before exempting a juvenile from

  registering as a sex offender at sentencing is whether “the

  registration requirement . . . would be unfairly punitive” to the

  juvenile. § 16-22-103(5)(a) (emphasis added). This is certainly

  some recognition by the General Assembly that requiring a juvenile

  to register may be punitive (and in some circumstances, unfairly


                                    10
  so). See also Millard v. Rankin, 265 F. Supp. 3d 1211, 1226 n.8 (D.

  Colo. 2017) (“The use of ‘unfairly’ suggests that at least some level

  of punishment is intended — just not an ‘unfair’ level.”). But still,

  on balance, we agree with the courts before us: CSORA’s text does

  not explicitly create a punishment. See § 16-22-112(1), C.R.S. 2018

  (“[I]t is not the general assembly’s intent that the information [found

  on the sex offender registry] be used to inflict retribution or

  additional punishment on any person convicted of unlawful sexual

  behavior . . . .”).

¶ 23    But this does not end our inquiry. Instead, we must “further

  examine whether the statutory scheme is ‘so punitive either in

  purpose or effect as to negate’” the legislature’s purportedly

  nonpunitive purpose. Smith, 538 U.S. at 92 (quoting Hendricks,

  521 U.S. at 361). The Supreme Court cautioned that “only the

  clearest proof” will suffice to override that declared intent and

  transform a civil remedy into a criminal penalty. Id. (quoting

  Hudson v. United States, 522 U.S. 93, 100 (1997)).




                                     11
       a.   Colorado Case Law and the Evolving Legal Landscape
                      Regarding Juvenile Sentencing

¶ 24   Although our supreme court has not weighed in on the issue

  we are addressing today, we are not writing on a blank slate.

  Indeed, we recognize that on multiple occasions, and without

  exception, divisions of this court have concluded that CSORA’s

  registration requirement is not a punishment. See People in Interest

  of C.M.D., 2018 COA 172, ¶ 20; J.O., ¶ 22; People v. Carbajal, 2012

  COA 107, ¶ 37; People v. Sowell, 327 P.3d 273, 277 (Colo. App.

  2011); People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011);

  Fendley v. People, 107 P.3d 1122, 1125 (Colo. App. 2004); People v.

  Stead, 66 P.3d 117, 120 (Colo. App. 2002), overruled on other

  grounds by Candelaria v. People, 2013 CO 47; People in Interest of

  J.T., 13 P.3d 321, 323 (Colo. App. 2000); People v. Montaine, 7 P.3d

  1065, 1067 (Colo. App. 1999); Jamison v. People, 988 P.2d 177, 180

  (Colo. App. 1999).

¶ 25   Even though “[w]e are not obligated to follow the precedent

  established by another division,” we give “such decisions

  considerable deference.” People v. Smoots, 2013 COA 152, ¶ 20,

  aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15. And we do not



                                   12
  take the prospect of departing from this court’s uniform precedent

  lightly, nor do we do so without careful consideration. But a

  confluence of developments in the law since our court first

  concluded that sex offender registration was nonpunitive twenty

  years ago persuades us to take a fresh look at the issue,

  particularly as it involves lifetime registration for juveniles.

¶ 26   First, the conclusion that CSORA’s sex offender registration

  requirement is nonpunitive has come under recent scrutiny. See

  Millard, 265 F. Supp. 3d at 1225 (“[A]lthough panels of the Colorado

  Court of Appeals have declined to find SORA’s provisions to be

  punitive, those cases have not engaged in the ‘intent-effects’

  analysis used by the United States Supreme Court, and the

  Colorado Supreme Court has not addressed the question.”). 2



  2 We recognize that two divisions have in fact analyzed CSORA’s
  registration requirement under the “intent-effects” factors set forth
  in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963). See
  People in Interest of C.M.D., 2018 COA 172, ¶¶ 22-23; People v.
  Stead, 66 P.3d 117, 121-23 (Colo. App. 2002), overruled on other
  grounds by Candelaria v. People, 2013 CO 47. We, however,
  respectfully disagree with the conclusions drawn by these divisions.
  See People v. Moore, 321 P.3d 510, 513 (Colo. App. 2010) (“One
  division of this court is not bound by the decision of another
  division.”), aff’d in part and vacated in part on other grounds, 2014
  CO 8.

                                      13
  Although we are in no way bound by the conclusion in Millard, the

  decision highlights that a growing number of states are revisiting

  whether sex offender registration requirements are punitive. Id. at

  1224 (collecting cases from other jurisdictions where state courts

  have concluded that their states’ registration requirements are

  punitive).

¶ 27   Second, and more importantly, the legal landscape involving

  juvenile sentencing in general has evolved considerably. Consider,

  for example, the United States Supreme Court’s evolving

  jurisprudence on juvenile sentencing over the last fourteen years.

  In Roper, 543 U.S. at 555, 568, the Court concluded that imposing

  the death penalty on offenders who were under eighteen at the time

  of their capital offenses is unconstitutional. Then in Graham, the

  Court held that juveniles convicted of nonhomicide offenses could

  not constitutionally be sentenced to life without parole. 560 U.S. at

  74. Finally, in Miller, the Court extended Graham, holding “that the

  Eighth Amendment forbids a sentencing scheme that mandates life

  in prison without possibility of parole for juvenile offenders”

  convicted of homicide. 567 U.S. at 479.




                                    14
¶ 28   Likewise, our supreme court has recently addressed juvenile

  sentencing in other contexts and adopted these federal standards.

  See, e.g., Estrada-Huerta v. People, 2017 CO 52; Lucero v. People,

  2017 CO 49; People v. Tate, 2015 CO 42.

¶ 29   Third, the Eighth Amendment jurisprudence on lifetime sex

  offender registration for juveniles in particular has also evolved. A

  growing number of courts in other states have recently discussed

  the constitutionality of requiring a juvenile to register as a sex

  offender for life. See, e.g., In re A.C., 54 N.E.3d 952, 968 (Ill. App.

  Ct. 2016); In Interest of T.H., 913 N.W.2d 578 (Iowa 2018); C.K., 182

  A.3d 917; In re C.P., 967 N.E.2d 729 (Ohio 2012); In re J.B., 107

  A.3d 1 (Pa. 2014); Vaughn v. State, 391 P.3d 1086, 1098 (Wyo.

  2017). And, unsurprisingly, many of these courts have drawn on

  the Supreme Court’s evolving juvenile sentencing jurisprudence,

  emphasizing that juvenile offenders have greater prospects for

  rehabilitation. See Miller, 567 U.S. at 479 (“[J]uveniles have

  diminished culpability and greater prospects for reform . . . .”).

¶ 30   Against this backdrop, it is our respectful assessment that the

  issue of whether the punitive effects of CSORA’s lifetime registration




                                     15
  requirement for juveniles are sufficient to override its stated

  nonpunitive purpose warrants examination through fresh lenses.

              b.     Applying the Mendoza-Martinez Factors

¶ 31   To determine if a statute’s punitive effect overrides its declared

  civil intent, courts must consider the following: (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; (7) whether it appears excessive in relation to the

  nonpunitive purpose. C.M.D., ¶ 22 (citing Mendoza-Martinez, 372

  U.S. at 168-69).

¶ 32   When applied to juveniles, some of the factors support the

  conclusion that CSORA’s lifetime registration requirement is not a

  punishment. First, the registration requirement involves no

  affirmative disability or restraint, at least not directly. See id. at

  ¶ 23 (“Unlike prison, probation, or parole, registration does not limit

  where offenders may live or where they may work, although local


                                      16
  ordinances may do so.”). Second, there is no finding of scienter

  that is required before a juvenile is required to register under

  CSORA. Instead, juveniles are required to register unless the

  juvenile court determines “that the registration requirement . . .

  would be unfairly punitive and that exempting the person from the

  registration requirement would not pose a significant risk to the

  community.” § 16-22-103(5)(a). This standard, however, does not

  require that the juvenile court evaluate a juvenile’s state of mind

  before imposing the registration requirement. But we agree with

  the courts that have concluded that the scienter factor is of little

  value when determining whether a sex offender registration

  requirement is a punishment. See Smith, 538 U.S. at 105 (scienter

  factor is “of little weight in this case”); T.H., 913 N.W.2d at 592

  (“[T]he lack of a scienter requirement weighs in favor, albeit

  marginally, of finding the statute nonpunitive.”); State v. Eighth

  Judicial Dist. Court, 306 P.3d 369, 387 (Nev. 2013) (same).

¶ 33   The remaining factors, however, support the conclusion that

  requiring automatic lifetime sex offender registration for juvenile

  offenses is a punishment.




                                     17
¶ 34   First, 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. Smith, 538 U.S. at 109 (Souter, J., concurring in the

  judgment). And when applied to juveniles, the dissemination of

  information becomes even more characteristic of a punishment

  because the information about a juvenile’s criminal history would

  not otherwise be publicly available. See § 19-1-304(1), C.R.S. 2018

  (setting forth limitations on public access to juvenile records); see

  also Chief Justice Directive 05-01, Directive Concerning Access to

  Court Records § 4.60(b)(4) (amended Oct. 18, 2016) (providing that

  juvenile delinquency records are presumptively non-public).

¶ 35   It is true that the Supreme Court concluded that the

  dissemination of accurate information about an individual’s

  criminal record is not a traditional form of punishment. Smith, 538

  U.S. at 98. But in that case the Court was addressing the

  consequences that befall adult sex offenders. Id. And, unlike




                                     18
  records of juvenile adjudications, records of adult convictions are

  presumptively public.

¶ 36   It is also true that T.B.’s status as a sex offender is not

  available on the sex offender registry that the Colorado Bureau of

  Investigation is required to make available on the internet. See

  § 16-22-111(1)(c). But that doesn’t change the fact that anyone

  who inquires into T.B.’s background is given access to information

  that he or she would not otherwise be able to have.3 Moreover, any

  member of the public may request and obtain from his or her local

  law enforcement agency a list of sex offenders, which would include

  juvenile offenders such as T.B. See § 16-22-112(2). And at the

  hearing on his petition to deregister, T.B.’s parole officer 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 his job. These public opprobrium




  3In his reply in support of his petition, T.B. asserts, with
  supporting documents, that “a simple [G]oogle search of [T.B.’s]
  name reveals two private websites that have his home address,
  details of his adjudication, his age and date of birth, his physical
  description, and one site includes his picture.”

                                     19
  consequences are often the sort of consequences associated with

  more traditional forms of punishment.

¶ 37   Further, as the Supreme Court has recognized, juveniles are

  different from adults for the purposes of the Eighth Amendment.

  See Miller, 567 U.S. at 471 (“Because juveniles have diminished

  culpability and greater prospects for reform, we explained, ‘they are

  less deserving of the most severe punishments.’” (quoting Graham,

  560 U.S. at 68)). This differentiation is particularly acute when

  considering the consequences that juveniles face when they are

  required to register as sex offenders. As Ohio’s supreme court

  stated:

            With no other offense is the juvenile’s
            wrongdoing announced to the world. Before a
            juvenile can even begin his adult life, before he
            has a chance to live on his own, the world will
            know of his offense. He will never have a
            chance to establish a good character in the
            community. He will be hampered in his
            education, in his relationships, and in his
            work life. His potential will be squelched
            before it has a chance to show itself.

  C.P., 967 N.E.2d at 741. CSORA imposes similar burdens on T.B.

  for offenses that he committed when he was a child; and these

  consequences resemble traditional forms of punishment.



                                   20
¶ 38   Second, CSORA’s lifetime registration requirement promotes

  the traditional aims of punishment — “retribution and deterrence.”

  Mendoza-Martinez, 372 U.S. at 168. A statute begins to look more

  retributive, and therefore punitive, when it imposes a sanction for

  past conduct and when it does not provide a mechanism by which

  an offender can “reduce or end registration based upon a showing

  that the offender is no longer a threat to the community.” Starkey

  v. Okla. Dep’t of Corr., 305 P.3d 1004, 1028 (Okla. 2013); cf. J.O.,

  ¶ 29 (stating that among the distinctions that rendered the

  Colorado’s juvenile sex offender requirement nonpunitive was that

  the juvenile in the case could “petition to discontinue registration

  after successfully completing and being discharged from his

  juvenile sentence or disposition”). CSORA does both with respect to

  twice-adjudicated juveniles like T.B. T.B. was compelled to register

  solely because of his past conduct and is still required to register

  even though the juvenile court made an express finding that he is

  no longer a danger to the community and is not likely to reoffend.

  Moreover, as the federal district court in Millard recognized, the

  Colorado Bureau of Investigation’s own website states that one of

  the goals of the sex offender registry is deterrence; and deterrence is


                                    21
  a traditional goal of punishment. See Millard, 265 F. Supp. 3d at

  1229 (“The CBI website also states that the registry’s goals are

  ‘Citizen/Public Safety; Deterrence of sex offenders for committing

  similar crimes; and Investigative tool for law enforcement.’” (quoting

  Colorado Bureau of Investigation, Registration,

  https://perma.cc/HD4C-PYR4)).

¶ 39   Third, for juveniles, the behavior to which CSORA applies is

  already a crime.4 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. And “[t]he fact that a statute applies only to

  behavior that is already, and exclusively, criminal supports a

  conclusion that its effects are punitive.” Doe v. State, 189 P.3d 999,

  1014 (Alaska 2008).



  4 For adults, CSORA’s registration requirement extends beyond just
  those who have been convicted of sex offenses, and also reaches
  individuals who have been found not guilty by reason of insanity of
  certain sex offenses and are later released, see § 16-8-115(4), C.R.S.
  2018; see also People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011)
  (applying CSORA’s registration requirement to an adult who was
  found not guilty by reason of insanity of sexual assault).

                                     22
¶ 40   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. It cannot be disputed that there is a rational

  connection between CSORA’s registration requirement and public

  safety. § 16-22-112(1). But we also must consider whether

  CSORA’s lifetime registration requirement for juveniles is excessive

  given the important public safety justifications at issue. Smith, 538

  U.S. at 97.

¶ 41   The question in this regard is not whether the legislature has

  chosen the best path to address its nonpunitive objective, but

  rather whether “the regulatory means chosen are reasonable in

  light of the nonpunitive objective.” Id. at 105. Other courts have

  placed the greatest weight on this factor. See T.H., 913 N.W.2d at

  594 (“The final Mendoza-Martinez factor is the most significant of

  the seven . . . .”); see also Wallace v. State, 905 N.E.2d 371, 383

  (Ind. 2009) (collecting cases stating the same). We agree with the

  courts that have viewed this as a weighty factor.

¶ 42   Indeed, a growing number of states have concluded that

  lifetime registration requirements similar to CSORA’s are excessive


                                    23
  as applied to juveniles considering their nonpunitive purpose. See

  Wallace, 905 N.E.2d at 384 (The statute is excessive in relation to

  its public safety purpose because it “makes information on all sex

  offenders available to the general public without restriction and

  without regard to whether the individual poses any particular

  future risk.”); T.H., 913 N.W.2d at 596 (“[M]andatory [lifetime]

  registration for juveniles is excessive in light of its nonpunitive

  purpose.”); Commonwealth v. Baker, 295 S.W.3d 437, 446 (Ky.

  2009) (“Given . . . the fact that there is no individual determination

  of the threat a particular registrant poses to public safety, we can

  only conclude that [the statute requiring lifetime registration] is

  excessive with respect to the nonpunitive purpose of public

  safety.”); C.P., 967 N.E.2d at 742 (requiring lifetime sex offender

  registration for juveniles is excessive because it is not dependent on

  what is actually necessary to preserve public safety).

¶ 43   In contrast, other states have concluded that a sex offender

  registration statute is not excessive in relation to its nonpunitive

  purpose when it provides an individualized assessment of the risk

  that a juvenile will reoffend. See In re Nick H., 123 A.3d 229, 247

  (Md. Ct. Spec. App. 2015) (holding that a statute is not excessive


                                     24
  because it requires that the court make an individualized finding

  that registration is appropriate for the juvenile and the period is

  only for up to five years); Eighth Judicial Dist. Court, 306 P.3d at

  387 (holding that a statute is not excessive because it limits sex

  offender registration for juveniles to only those crimes that pose the

  highest risk of reoffending); In re Justin B., 747 S.E.2d 774, 783

  (S.C. 2013) (holding that a statute is not excessive when a juvenile

  may petition to deregister after ten years); Vaughn, 391 P.3d at

  1100 (holding that a statute is not excessive in relation to public

  safety purpose because an offender can apply for removal after ten

  years). Because CSORA prohibits T.B. from filing a petition to

  deregister, he is precluded from getting an individualized

  assessment related to whether registration is still necessary for the

  protection of the community.

¶ 44   We conclude that requiring a juvenile, even one who 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. The juvenile court


                                     25
  specifically found that T.B. “successfully addressed all issues

  related to his sexual offending behavior” and that he was “not likely

  to reoffend.” But even in light of these findings, CSORA left the

  juvenile court powerless to consider — let alone grant — T.B.’s

  petition to deregister.

¶ 45   Under CSORA, there is simply no connection between the

  lifetime registration requirement for juveniles and the likelihood

  that the registrant will reoffend; the only criterion for lifetime

  registration is a finding that the juvenile has been twice adjudicated

  for unlawful sexual behavior. See generally § 16-22-103. In other

  words, once the requirement to register for life is imposed, it

  remains in effect without regard to whether the registrant is a

  continuing danger to the public. Thus, we conclude that because

  CSORA’s lifetime registration requirement is not adequately

  tethered to the statute’s stated nonpunitive purpose, the automatic

  lifetime registration requirement for juvenile offenders is excessive.

  And because CSORA’s lifetime registration requirement is excessive

  in relation to its nonpunitive purpose when applied to juveniles, we

  conclude that it operates more like a punishment.




                                     26
¶ 46   In short, the weightiest Mendoza-Martinez factors, including

  ones most pertinent to our determination, demonstrate that the

  punitive effects of CSORA’s lifetime registration requirement as

  applied to juveniles override its stated nonpunitive purpose. As a

  result, we decline to adopt the conclusions of prior divisions of this

  court. See People v. Washington, 2014 COA 41, ¶ 27 (“To the extent

  that several divisions of this court have departed from Strickland’s

  above-noted statements regarding the applicable burden of proof,

  we are not obligated to follow those divisions.”) (citations omitted);

  People in Interest of S.N-V., 300 P.3d 911, 914 (Colo. App. 2011) (a

  division of the court of appeals is not bound by other divisions).

  Instead, we conclude that CSORA’s lifetime registration requirement

  for juveniles is a punishment within the meaning of the Eighth

  Amendment.

¶ 47   But this still does not end the inquiry. Unlike prior divisions,

  because we have concluded that CSORA’s lifetime registration

  requirement for juveniles constitutes a punishment, we must now

  consider whether the punishment is cruel and unusual.




                                     27
              2.    Is the Punishment Cruel and Unusual?

¶ 48   “Embodied in the Constitution’s ban on cruel and unusual

  punishments is the ‘precept of justice that punishment for crime

  should be graduated and proportioned to [the] offense.’” Graham,

  560 U.S. at 59 (quoting Weems v. United States, 217 U.S. 349, 367

  (1910)). The juvenile court never reached the issue of whether the

  lifetime registration requirement is cruel and unusual on its face or

  as applied to T.B. This is entirely understandable given this court’s

  previously unbroken line of cases concluding that the registration

  requirement was not a punishment. See, e.g., J.O., ¶ 30 (declining

  to address whether a punishment is cruel and unusual because

  division concluded that registration requirement is not a

  punishment); see also Patterson v. James, 2018 COA 173, ¶ 40

  (Published opinions of the court of appeals “are binding precedent

  for ‘all lower court judges.’” (quoting C.A.R. 35(e))).

¶ 49   Whether a particular punishment is cruel and unusual is a

  fact-intensive inquiry. See Millard, 265 F. Supp. 3d at 1231

  (analyzing whether registration is cruel and unusual punishment by

  examining the specific effects that registration has on each

  offender); cf. Anderson v. Colo., Dep’t of Corr., 848 F. Supp. 2d 1291,


                                      28
  1296 (D. Colo. 2012) (denying motion for summary judgment

  because there were material facts in dispute as to whether

  restricting access to exercise is a cruel and unusual punishment).

  As such, it is best addressed by the trial court in the first instance.

¶ 50   At the hearing on his petition, T.B. submitted some evidence

  relevant to whether the lifetime registration requirement constituted

  a cruel and unusual punishment. For example, T.B.’s parole officer

  testified about some of the hardships that he faces as a registrant.

  T.B. also put in the record numerous scholarly articles discussing

  whether the registration requirement is cruel and unusual as

  applied to juveniles. See, e.g., Amy E. Halbrook, Juvenile Pariahs,

  65 Hastings L.J. l (2013); Human Rights Watch, Raised on the

  Registry: The Irreparable Harm of Placing Children on Sex Offender

  Registries in the US (May 2013), https://perma.cc/B3E9-AT5S.

¶ 51   Unsurprisingly, the People didn’t rebut this evidence, as they

  were — quite understandably — relying on the contention that the

  juvenile court was bound to follow this court’s decisions concluding

  that CSORA’s lifetime registration requirement was not a

  punishment. And, because it concluded that the lifetime

  registration requirement for juveniles was not a penalty, the


                                     29
  juvenile court didn’t make any findings about whether it’s cruel and

  unusual. See, e.g., J.O., ¶ 30 (“[H]aving concluded that requiring

  juvenile sex offenders to register does not constitute punishment

  under the Eighth Amendment, we need not address whether

  registration is cruel and unusual.”).

¶ 52   But neither of the parties nor the juvenile court had the

  guidance of this opinion during any of the prior proceedings, and,

  as a result, they had no notice that evidence and findings related to

  whether the punishment was cruel and unusual would be required

  to resolve this case and rule on T.B.’s petition to deregister. Thus,

  on remand, both T.B. and the People must be afforded an

  opportunity to present additional evidence on the issue of whether

  CSORA’s lifetime registration requirement for juveniles constitutes

  cruel and unusual punishment. See In re Marriage of Fabos, 2019

  COA 80, ¶ 57 (“[B]ecause the court and the parties did not have the

  guidance of [the supreme court’s opinion] during the earlier

  hearing, both parties should be afforded the opportunity to present

  the district court with additional evidence and argument if either

  party wishes to do so.”). Accordingly, we remand the case to the

  juvenile court to take further evidence and make findings on the


                                    30
  issue of whether CSORA’s lifetime registration requirement for

  juveniles — either facially or as applied to T.B. — constitutes cruel

  and unusual punishment in violation of the Eighth Amendment.

                      C.    Irrebuttable Presumption

¶ 53   T.B. also argues that CSORA creates an impermissible

  irrebuttable presumption that a previous offender will offend again

  and, therefore, remains a danger to the community forever.

  Statutes that create irrebuttable presumptions are disfavored. See

  Vlandis v. Kline, 412 U.S. 441, 446 (1973); People in Interest of

  S.P.B., 651 P.2d 1213, 1217 (Colo. 1982). The irrebuttable

  presumption doctrine springs from substantive due process, so we

  apply the rational basis test to determine the constitutionality of a

  statute unless the statute infringes upon a fundamental

  constitutional interest. People v. Young, 859 P.2d 814, 818 (Colo.

  1993) (“[W]hen no fundamental right is implicated, the legislation is

  subject to evaluation for substantive due process purposes

  pursuant to the rational basis test . . . .”). In his briefing to this

  court, however, T.B. does not articulate what fundamental

  constitutional interest the registration requirement infringes on.

  Because of this and because we are reversing the trial court’s order


                                      31
  based on our conclusion that CSORA’s lifetime registration

  requirement constitutes a punishment, we decline to address T.B.’s

  argument that the automatic registration requirement imposes an

  unconstitutional irrebuttable presumption.

                            IV.   Conclusion

¶ 54   The juvenile court’s order denying T.B.’s petition to

  discontinue the requirement that he register as a sex offender is

  reversed, and the case is remanded to the juvenile court for further

  proceedings consistent with this opinion.

       JUDGE HARRIS concurs.

       JUDGE WEBB dissents.




                                   32
       JUDGE WEBB, dissenting.

¶ 55   Every division of this court to have considered Eighth

  Amendment challenges to the mandatory lifetime registration

  requirement in the Colorado Sex Offender Registration Act (CSORA)

  has held that because this requirement does not constitute

  punishment — cruel and unusual or otherwise — it is

  constitutional. This case tests the principle that one division of this

  court should give considerable deference to decisions of other

  divisions.

¶ 56   But because a court has determined that despite T.B.’s two

  prior sex offenses, he poses a low risk of sexually reoffending,1 does

  this requirement still survive Eighth Amendment scrutiny? True, a

  similar determination did not face any of those prior divisions.

  Even so, nonpunitive purposes of CSORA other than safeguarding

  against recidivism, as recognized by prior divisions, show that the

  registration requirement is not an excessive sanction — and thus



  1
   During the hearing, the trial court said T.B. “is not a risk to
  sexually reoffend.” Then in its order, the trial court said T.B. “is
  unlikely to reoffend.” See Reed v. Indus. Claim Appeals Office, 13
  P.3d 810, 813 (Colo. App. 2000) (“[I]f there is a conflict between oral
  and written findings, it is the written order that controls.”).

                                    33
  punishment — under the Eighth Amendment. And because

  relatively recent United States Supreme Court cases imposing

  constitutional limitations on juvenile sentencing deal with palpable

  punishments — the death penalty and life without possibility of

  parole — 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 addressed by the majority, I

  further conclude that the requirement does not violate due process,

  either on its face or as applied to T.B.

¶ 57   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.

                I. This Appeal Is Not Procedurally Barred

¶ 58   I agree with the majority that T.B.’s constitutional arguments

  are not procedurally barred and note that the Attorney General does

  not dispute preservation.




                                     34
          II. The Eighth Amendment Does Not Afford T.B. Relief

                              A. Background

¶ 59     The majority correctly concludes that constitutional challenges

  under the Eighth Amendment are reviewed de novo. People v.

  McCulloch, 198 P.3d 1264, 1268 (Colo. App. 2008) (“[A]ppellate

  scrutiny of an Eighth Amendment challenge is de novo.”). The

  majority’s overview of general Eighth Amendment jurisprudence,

  summary of the relevant Colorado statutes, and explanation of how

  those statutes apply to T.B. are accurate and lead to the

  inescapable conclusion that T.B. is entitled to petition to

  discontinue his registration requirement if — and only if — the

  registration requirement, as applied to him, is cruel and unusual

  punishment.

¶ 60     Thus, the threshold question is whether this requirement

  constitutes punishment. In my view, it never did, and still does

  not.

                      B. Court of Appeals Precedent

¶ 61     Citing ten published cases, the majority acknowledges that

  “without exception, divisions of this court have concluded that

  CSORA’s registration requirement is not a punishment.” Supra


                                    35
  ¶ 24. The majority does not cite contrary precedent from either our

  supreme court or the United States Supreme Court. Nor have I

  found any.

¶ 62   Everyone agrees that one division of this court gives decisions

  of other divisions “considerable deference.” People v. Smoots, 2013

  COA 152, ¶ 20, aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15;

  see also Williams v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 143

  (Berger, J., concurring in part and dissenting in part) (“[W]e should

  not easily cast aside a considered decision by a prior division of this

  court.”). 2 Because I adhere to the unanimous holdings of other

  divisions, the majority’s string citation warrants a closer look.


  2
    The destabilizing effect on trial courts and litigants of creating a
  conflict among published decisions of this court also favors
  consistency. See Greyhound Lines, Inc. v. County of Santa Clara,
  231 Cal. Rptr. 702, 704 (Cal. Ct. App. 1986) (“We acknowledge we
  are not bound by an opinion of another District Court of Appeal,
  however persuasive it might be. We respect stare decisis, however,
  which serves the important goals of stability in the law and
  predictability of decision.”) (citation omitted). Under C.A.R. 35(e),
  “[o]pinions designated for official publication must be followed as
  precedent by all lower court judges in the state of Colorado.” But if
  conflicting published opinions exist, should a trial judge go with the
  majority of divisions, take the most recent pronouncement, or
  decide what is the better rule? Of course, litigants can argue for
  any of these options. And whatever choice the trial judge makes,
  the loser is compelled to appeal as a means of preserving the
  question until our supreme court speaks.

                                    36
¶ 63     In People in Interest of J.O., 2015 COA 119, ¶ 30, the division

  held that “sex offender registration under section 16-22-103[,

  C.R.S. 2018] — even as applied to juveniles — does not constitute

  punishment.” The division relied on the following court of appeals

  cases that have reached this conclusion.

       • Jamison v. People, 988 P.2d 177, 180 (Colo. App. 1999) (“[T]he

         General Assembly did not intend the registration requirement

         to inflict additional punishment on a person convicted of a

         sexual offense. Rather, such registration is required in order

         to aid law enforcement officials in investigating future sex

         crimes and to protect the public safety.”).

       • People in Interest of J.T., 13 P.3d 321, 323 (Colo. App. 2000)

         (“The statutory duty to register as a sex offender is not a

         criminal punishment.”).

       • People v. Stead, 66 P.3d 117, 120 (Colo. App. 2002) (“[T]he sex

         offender registration statute does not disadvantage those

         offenders subject to its provisions; thus, registration is not

         punishment . . . .”) (citation omitted), overruled on other

         grounds by Candelaria v. People, 2013 CO 47.




                                      37
    • People v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011) (“The

      statutory scheme[ for sex offender registration] . . . indicates

      that registration is not punitive, but rather aids law

      enforcement in investigating future crimes and promotes

      public safety.”).

    • People v. Sowell, 327 P.3d 273, 277 (Colo. App. 2011) (“Laws

      imposing registration requirements on sex offenders [are] . . .

      not punishment . . . .”).

    • People v. Carbajal, 2012 COA 107, ¶ 37 (“Sex offender

      registration is not an element of a defendant’s sentence, and

      the purpose of registration is not to punish the defendant, but

      to protect the community and to aid law enforcement officials

      in investigating future sex crimes.”).

    • People v. Montaine, 7 P.3d 1065, 1067 (Colo. App. 1999)

      (“Although the duty to register flows directly from defendant’s

      conviction as a sex offender, it does not enhance defendant’s

      punishment for the offense.”).3


3
 Similar Colorado cases not cited in J.O. include Fendley v. People,
107 P.3d 1122, 1125 (Colo. App. 2004) (“The purpose of sex
offender registration is not to inflict additional punishment on a
person convicted of a sexual offense, but rather to aid law

                                   38
¶ 64   The J.O. division explained that these cases “comport with the

  position of the Supreme Court” in Smith v. Doe, 538 U.S. 84, 93

  (2003) (upholding Alaska Sex Offender Registration Act’s

  constitutionality because statutory text’s stated public safety

  objective was nonpunitive). J.O., ¶ 22. And it pointed out that

  many of them recognize the General Assembly’s expressly

  nonpunitive intent as to sex offender registration:

            The general assembly declares . . . that, in
            making this information available to the
            public, as provided in this section and section
            16-22-110(6), it is not the general assembly’s
            intent that the information be used to inflict
            retribution or additional punishment on any
            person convicted of unlawful sexual behavior
            or of another offense, the underlying factual
            basis of which involves unlawful sexual
            behavior.

  § 16-22-112(1), C.R.S. 2018.




  enforcement officials in investigating future sex crimes and to
  protect the public safety.”); People v. Tuffo, 209 P.3d 1226, 1230
  (Colo. App. 2009) (“[T]he registration and notification requirements
  established in the SVP statute are intended to protect the
  community rather than punish the offender.”); and People in
  Interest of I.S., 2017 COA 155, ¶ 9 (“Because sex offender
  registration is not an element of a defendant’s sentence, it is of no
  consequence to this appeal that the court later voided I.S.’s first
  sentence.”).

                                    39
¶ 65   Of course, this statute applies here just as it did in J.O. And

  the Supreme Court has not retreated from Smith.

¶ 66   To dispel the majority’s conclusion that the “issue of whether

  the punitive effects of CSORA’s lifetime registration requirement for

  juveniles are sufficient to override its stated nonpunitive purpose

  warrants examination through fresh lenses,” supra ¶ 30 , three of

  our prior cases deserve more than a summary.

¶ 67   In Stead, 66 P.3d at 121, the division applied the factors in

  Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), to

  determine whether a defendant’s placement on the internet sex

  offender list constituted punishment. The division explained

            that the internet notification scheme may have
            the purpose or effect of a punishment in that it
            is triggered by a criminal offense, and it may
            require an additional finding of scienter.
            However, the scheme is not punitive in that it
            imposes no fine, confinement, or restraint; it
            has an expressly nonpunitive intent and
            purpose; it is not traditionally considered a
            type of punishment; and it is not excessive in
            relation to the public safety purposes it serves.

  Stead, 66 P.3d at 123. It concluded that “taken as a whole, the

  Internet posting provision of the sex offender statute does not

  constitute additional punishment.” Id.



                                    40
¶ 68     Similarly, in People v. Rowland, 207 P.3d 890, 892 (Colo. App.

  2009), the division applied the Mendoza-Martinez factors to section

  16-13-903(3)(a), C.R.S. 2018, which requires that “the sexually

  violent predator’s status as being subject to community notification

  shall be entered in the central registry of persons required to

  register as sex offenders created pursuant to section 16-22-110.”

  Then the division held that the community notification

  requirements did not constitute punishment for the following

  reasons.

       • “[C]ommunity notification does not impose an affirmative

         disability or restraint because it does not, on its face, restrict

         where an offender may live or work and does not alter either

         the length of incarceration or the parole eligibility date.”

         Rowland, 207 P.3d at 893.

       • “Notification to the affected community has not traditionally

         been considered punishment.” Id. at 894.

       • Even though community notification requires a finding of

         scienter, this “standing alone does not require treating a

         statute as punishment.” Id.




                                       41
       • “[C]ommunity notification requirements may be like

         punishment because they have a deterrent effect . . . [but] this

         factor is inconclusive.” Id.

       • Although “[t]he behavior to which community notification

         attaches is a crime . . . ‘[the General Assembly] may impose

         both a criminal and a civil sanction in respect to the same act

         or omission.’” Id. (quoting United States v. Ward, 448 U.S.

         242, 250 (1980)).

       • “[T]he General Assembly’s stated purpose is to protect the

         community. Informing and educating the community . . . are

         rationally connected to this purpose.” Id.

       • “The costs of notifying the target groups or specific

         communities does not appear to be excessive in light of the

         public safety purpose of the legislation and the controlled

         procedures for disseminating the information.” Id.

¶ 69     Sexually violent predator designation is at least as impactful

  on the registrant as sex offender registration alone. See § 16-22-

  108(1)(d)(I), C.R.S. 2018 (“Any person who is a sexually violent

  predator . . . has a duty to register for the remainder of his or her




                                        42
  natural life . . . .”). Given the offenses that lead to SVP designation,

  greater approbation may well attach. § 16-22-102(7), C.R.S. 2018.

¶ 70     Most recently, in People in Interest of C.M.D., 2018 COA 172,

  the division analyzed these factors to conclude CSORA is not

  punishment as applied to a juvenile who — like T.B. — is subject to

  mandatory lifetime sex offender registration. The division held that

  “the statute itself does not impose an ‘affirmative disability or

  restraint.’ Unlike prison, probation, or parole, registration does not

  limit where offenders may live or where they may work, although

  local ordinances may do so.” Id. at ¶ 23 (quoting Smith, 538 U.S. at

  99). It also determined:

       • “[T]he statute’s operation does not ‘promote the traditional

         aims of punishment — retribution and deterrence.’” Id.

         (quoting Mendoza-Martinez, 372 U.S. at 168). Rather, “[t]hose

         aims are primarily furthered by imposition of the sentence

         associated with the offense, not the associated registration

         requirement.” Id.

       • “[A]lthough the conduct to which registration applies is

         already a crime, that crime carries its own punishment; any




                                     43
         punishment arising from a failure to register results from a

         proceeding separate from the original offense.” Id.

       • “[T]he stated and rational purpose of sex offender registration

         is to protect the public, and requiring registration is not

         excessive in light of this purpose.” Id.

¶ 71     Because Stead, Rowland, and C.M.D. are particularly well

  reasoned, I decline even to revisit all but one of the

  Mendoza-Martinez factors. As to the last such factor — whether the

  sanction appears excessive in relation to the alternative purposes

  assigned — these cases did not evaluate protecting the public from

  an offender who, like T.B., had been determined to pose little risk of

  reoffending. Even so, T.B.’s argument that lifetime sex offender

  registration constitutes punishment because of this determination

  misses the mark in at least three ways.

¶ 72     First, T.B. disregards that “[t]he determination whether an

  offender is likely to reoffend is an inexact science.” State v. Yost,

  2008-Ohio-3682, ¶ 11, 2008 WL 2822291, *2 (Ohio Ct. App. July

  24, 2008). Indeed, “there appears to be a consensus among experts

  that it is impossible to say that a person who has committed a sex

  offense — which by definition includes every person potentially


                                      44
  subject to registration under the act — poses no risk of reoffense.”

  L.L. v. Commonwealth, 20 N.E.3d 930, 938 (Mass. 2014). And here,

  the trial court did not have the benefit of expert testimony.

¶ 73   Second, T.B. mistakenly assumes that protecting the public

  from him is the only purpose for registration. As discussed in Part

  III.E below, the government also has an interest in assisting law

  enforcement. And law enforcement may legitimately choose to start

  investigating a sex offense with a known sex offender in the vicinity

  of the crime. For example, even if such an offender poses a very low

  risk of reoffending, the offender may be able to provide leads to

  other offenders who do pose such a risk.

¶ 74   Third, as also discussed Part III.E, providing notice to the

  public about a sex offender who has committed a crime requiring

  registration is informational. Given the inherent imprecision in

  predicting that offender’s future criminality, informed citizens can

  — and should be allowed to — make their own risk assessments,

  for themselves and their vulnerable family members. See Smith,

  538 U.S. at 104 (Sex offender registration “allow[s] the public to

  assess the risk on the basis of accurate, nonprivate information

  about the registrants’ convictions.”).


                                    45
¶ 75   In light of these nonpunitive purposes, I reject the majority’s

  conclusion that lifetime sex offender registration of an offender such

  as T.B. is an excessive sanction and thus punishment.

¶ 76   But does Millard v. Rankin, 265 F. Supp. 3d 1211, 1225 (D.

  Colo. 2017), cited by the majority as one of three reasons for

  discarding nearly two decades of this court’s precedents, require a

  contrary conclusion? Of course, as the majority admits, we are not

  bound by Millard. 4 See, e.g., Monez v. Reinertson, 140 P.3d 242,

  245 (Colo. App. 2006) (“While we must follow the United States

  Supreme Court’s interpretation of federal law, we are not bound by

  decisions of lower federal courts.”).

¶ 77   More importantly, as the division in C.M.D., ¶ 24, explained:

             Although we conclude that the CSORA is not
             punishment . . . we recognize that the federal
             court in Millard, on which C.M.D. relies,
             reached a contrary conclusion. In that case,
             three registered sex offenders testified to
             specific adverse consequences they had
             suffered — including forced changes of
             residence, one man’s exclusion from his own
             children’s school, and difficulties in obtaining
             or maintaining employment — as a result of
             the registration requirement. The court
             observed that such evidence of “actual adverse

  4
   An appeal has been filed in Millard with the Tenth Circuit, case
  number 17-1333, docketed September 21, 2017.

                                     46
             consequences” of sex offender registration was
             relevant to the plaintiffs’ Eighth Amendment
             claim. 265 F. Supp. 3d at 1222. After
             acknowledging the non-punitive legislative
             intent of the CSORA, the court concluded that,
             based on the testimony, the statute’s effects on
             the three plaintiffs before it were clearly
             punitive.

¶ 78   By contrast, here the trial court made no findings about how

  registration impacted T.B. As to the evidence of adverse effects on

  T.B., he expressed pride in his employment as a fast-food

  restaurant manager, but believed he was being held back by the

  continued obligation to register as a sex offender. And his

  probation officer testified that T.B. “can’t seem to get a better job.

  He can’t seem to get an apartment because of the scrutiny that he’s

  under when he applies.” This evidence falls short of Millard, even

  were I to accept its rationale.

             C. Differences Between Juveniles and Adults

¶ 79   T.B. urges us to view whether lifetime sex offender registration

  for juveniles constitutes punishment through the prism of Supreme

  Court cases like Graham, Miller, and Roper. And the majority

  identifies these cases as a second reason for going against this

  court’s unanimous precedent. But the division in J.O. rejected this



                                     47
  very argument. See J.O., ¶¶ 2, 21-30 (Lifetime sex offender

  registration did not violate J.O.’s constitutional rights even though

  juvenile offenders are “different from adults in their diminished

  culpability and greater prospects for reform.” (quoting People v.

  Tate, 2015 CO 42, ¶ 28)); see also C.M.D., ¶ 20 (agreeing with J.O.).

¶ 80   True, unlike the juvenile in J.O., T.B. cannot petition to

  discontinue registration. Still, the amount of time during which a

  sex offender is required to register does not transform the

  registration requirement into punishment. See Sowell, 327 P.3d at

  277 (“Nor does modification of this requirement from an indefinite

  to a lifelong duty to register transform [sex offender] registration

  into a punishment.”). And cases that have reached the opposite

  conclusion — such as In re C.P., 967 N.E.2d 729, 741 (Ohio 2012)

  — were decided in jurisdictions where sex offender registration

  requirements are considered punishment. See State v. Williams,

  952 N.E.2d 1108, 1112 (Ohio 2011) (“[A]ll doubt has been removed:

  [Ohio’s sex offender registration statute] is punitive.”).

¶ 81   As well, reliance on Roper, Graham, and Miller to show an

  Eighth Amendment violation is circular. These cases all focus on

  the differences between children and adults in imposing


                                     48
  punishments. See People v. Gutierrez, 324 P.3d 245, 262 (Cal.

  2014) (“At the core of Miller’s rationale is the proposition —

  articulated in Roper, amplified in Graham, and further elaborated in

  Miller itself — that constitutionally significant differences between

  children and adults ‘diminish the penological justifications for

  imposing the harshest sentences on juvenile offenders.’” (quoting

  Miller, 567 U.S. at 472)). Yet, recognizing that “children are less

  culpable and more capable of change than adults is relevant in

  determining whether the harshest punishment is appropriate, but it

  does not establish that sex offender registration is

  punishment . . . .” In re J.C., 221 Cal. Rptr. 3d 579, 592 (Cal. Ct.

  App. 2017)); see also State v. Martin, 61 N.E.3d 537, 543 (Ohio Ct.

  App. 2016) (“The flaw in Martin’s argument is that he is trying to

  equate a death sentence or a life sentence without the possibility of

  parole with having to register as a sex offender for life. It is illogical

  to do so and, as such, we decline to extend the reasoning in the

  three United States Supreme Court cases to the facts present

  here.”).

¶ 82   So, affording a repeat juvenile sex offender the leniency

  espoused in these cases bootstraps leniency as an answer to the


                                      49
  punishment question. But as shown above, at least in Colorado,

  sex offender registration is not a punishment.

¶ 83   As the majority points out, in six states Eighth Amendment

  jurisprudence as applied to juvenile sex offenders has evolved. And

  this trend, according to the majority, is a third reason for breaking

  ranks with other divisions of this court. But in one of those states

  — Illinois — its supreme court has not yet spoken. And these cases

  were available to the C.M.D. division for its consideration.

¶ 84   As well, in other equally recent cases, the majority’s decision

  to treat lifetime registration as punishment continues to be rejected.

  See, e.g., J.C., 221 Cal. Rptr. 3d at 593 (“Because J.C. has failed to

  establish that juvenile sex offender registration is punishment, his

  claim that registration is cruel and unusual punishment must

  fail.”); State v. Boche, 885 N.W.2d 523, 532 (Neb. 2016) (“Because

  we conclude the lifetime registration requirements imposed on [the

  juvenile] are not punishment, his argument that these registration

  requirements amount to cruel and unusual punishment must

  necessarily fail.”); In Interest of Justin B., 799 S.E.2d 675, 681 (S.C.

  2017) (“The requirement that . . . juveniles who commit criminal




                                     50
  sexual conduct must register as a sex offender and wear an

  electronic monitor is not a punitive measure . . . .”).

¶ 85   This mix of cases hardly presents a tidal wave that we must

  ride or risk being washed away. Instead, absent an overarching

  constitutional right — which the Supreme Court has not identified

  — this difference of opinion illustrates federalism. For this reason,

  the majority’s holding would be a choice better made by our

  supreme court. See People v. Herrera, 39 Cal. Rptr. 3d 578, 586

  (Cal. Ct. App. 2006) (“[W]e . . . are unwilling to blaze a new trail

  after the courts have followed a single path for decades. If

  appropriate, any such change of direction is better left to the

  Supreme Court.”).

¶ 86   On the one hand, having discerned no punishment, I need not

  address whether the purported punishment is cruel and unusual.

  But on the other hand, because the majority finds an Eighth

  Amendment violation, it does not address T.B.’s alternative due

  process claim. So, I must address that claim as well.

            III. T.B.’s Due Process Rights Were Not Violated

¶ 87   T.B. next contends lifetime sex offender registration for repeat

  juvenile sex offenders violates due process. Although his opening


                                     51
  brief does not clearly distinguish between procedural and

  substantive due process, because he raised both principles below, I

  interpret his appellate arguments as also encompassing both of

  them, but discern no constitutional violation under either principle.

                     A. Standard of Review and Law

¶ 88   The Constitution guarantees that the government shall not

  deprive any person of an interest in “life, liberty or property without

  due process of law.” U.S. Const. amend. XIV, § 1. “This clause

  imposes two different constraints on governmental decisions:

  procedural due process and substantive due process.” M.S. v.

  People, 2013 CO 35, ¶ 9; see Turney v. Civil Serv. Comm’n, 222 P.3d

  343, 352 (Colo. App. 2009) (“Procedural due process . . . requires

  fundamental fairness in procedure and is met if the party is

  provided with notice and an opportunity to be heard. Substantive

  due process . . . guarantees that the state will not deprive a person

  of those rights for arbitrary reasons regardless of how fair the

  procedure is.”) (citation omitted); Salazar v. Am. Sterilizer Co., 5

  P.3d 357, 371 (Colo. App. 2000) (“Procedural due process requires

  that a party be given notice and an opportunity to be heard. It also

  requires a fundamental fairness in procedure. Substantive due


                                     52
  process requires that legislation be reasonable and not arbitrary or

  capricious.”) (citation omitted).

¶ 89     Whether lifetime sex offender registration violates due process

  is a question of law subject to de novo review. See People in Interest

  of C.J., 2017 COA 157, ¶ 25.

       B. T.B. Has Not Identified a Liberty Interest or a Fundamental
                                    Right

¶ 90     I start with this issue because “[t]he requirements of

  procedural due process apply only to the deprivation of interests

  encompassed by the Fourteenth Amendment’s protection of liberty

  and property.” M.S., ¶ 10 (quoting Bd. of Regents of State Colls. v.

  Roth, 408 U.S. 564, 569 (1972)). In other words, absent a “denial of

  a liberty or property interest . . . the government does not have to

  provide procedural due process.” Id.

¶ 91     Likewise, under substantive due process, a statute that

  infringes on a fundamental right must be narrowly tailored to serve

  a compelling state interest. Jones v. Samora, 2016 COA 191, ¶ 72.

  But in the absence of a fundamental right, the applicable standard

  of review for a substantive due process challenge is rational basis.

  Ferguson v. People, 824 P.2d 803 (Colo. 1992). And rational basis



                                      53
  review “is especially deferential to legislative choice.” Culver v. Ace

  Elec., 971 P.2d 641, 646 (Colo. 1999).

¶ 92   T.B. argues that CSORA “harms the reputation of juvenile

  registrants by branding them as sex offenders and making public

  juvenile offenses that otherwise would be kept private.” But he

  cites neither United States Supreme Court nor Colorado authority,

  and I have not found any, recognizing reputation as a protected

  liberty interest. To the contrary, “mere injury to reputation, even if

  defamatory, does not constitute the deprivation of a liberty

  interest.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003);

  accord Watso v. Colo. Dep’t of Soc. Servs., 841 P.2d 299, 306 (Colo.

  1992) (“[I]njury to reputation alone, absent some additional injury

  to a right or status established by state law, does not constitute a

  deprivation of any liberty or property interest . . . .”).

¶ 93   Nor does T.B. cite any binding federal precedent — much less

  any Colorado authority — recognizing reputation as a fundamental

  right. This lack of authority makes sense because courts should be

  “reluctant to recognize new rights as fundamental.” Evans v.

  Romer, 882 P.2d 1335, 1359 (Colo. 1994), aff’d, 517 U.S. 620




                                      54
  (1996); see also Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010)

  (“[T]here is no fundamental right to one’s own reputation . . . .”).

¶ 94   Fundamental rights are liberties “deeply rooted in this Nation’s

  history and tradition.” Moore v. City of East Cleveland, 431 U.S.

  494, 503 (1977). A right to be free from sex offender registration

  because it infringes on a juvenile’s reputation does not meet this

  standard. See Vaughn v. State, 391 P.3d 1086, 1096 (Wyo. 2017)

  (“[W]e conclude that juveniles who have been convicted of serious

  sex offenses do not have a fundamental right to be free from the

  registration and notification requirements . . . even if those require

  information concerning them and their offenses to be disseminated

  in limited ways and to potentially remain in place for life.”); see also

  In re A.C., 54 N.E.3d 952, 962 (Ill. App. Ct. 2016) (“Respondent cites

  no controlling case law establishing that a ‘deeply rooted’

  fundamental right is violated by juveniles being subjected to the

  registration or notification provisions at issue.”); Justin B., 799

  S.E.2d at 681 (“A delinquent juvenile’s reputation may be in greater

  need of protection than the reputation of an adult convicted of a

  felony sex crime, but the juvenile’s interest in that reputation is still

  neither liberty nor property.”).


                                     55
¶ 95   In sum, given the lack of precedent recognizing a juvenile’s

  reputation as a liberty interest or a fundamental right, I decline to

  do so here.

       C. The Irrebuttable Presumption Doctrine Does Not Apply

¶ 96   T.B.’s due process arguments — both procedural and

  substantive — assume that lifetime sex offender registration for

  repeat juvenile sex offenders rests on an irrebuttable presumption

  of “ongoing, lifetime recidivism.” See In re R.M., No. 666 EDA 2014,

  2015 WL 7587203, at *25 (Pa. Super. Ct. Feb. 13, 2015) (“[A]n

  irrebuttable presumption claim generally challenges both the

  statute, i.e. the substance, and the procedure employed by the

  statute.”). This assumption does not survive scrutiny.

¶ 97   True enough, “[s]tatutes creating permanent irrebuttable

  presumptions have long been disfavored under the due process

  clauses of the Fifth and Fourteenth Amendments to the United

  States Constitution.” People in Interest of S.P.B., 651 P.2d 1213,

  1217 (Colo. 1982). And when an irrebuttable presumption has

  been used, the “most common remedy applied is requiring the

  decision maker to permit rebuttal and thus to allow exceptions to

  general rules.” Id.


                                    56
¶ 98    But in S.P.B., our supreme court explained that a “threshold

  requirement for invocation of this remedy” is that the “case must be

  appropriate for review under a heightened standard of scrutiny.”

  Id. In other words, again a fundamental right or liberty interest

  must be at stake.

¶ 99    This threshold requirement was met in In re J.B., 107 A.3d 1,

  19 (Pa. 2014), on which T.B. relies. There, the court explained that

  in Pennsylvania, “juvenile offenders have a protected right to

  reputation.” Id. Unsurprisingly, given this right, the court held

  that sex offender registration based on a “presumption of

  recidivism” violates juvenile offenders’ due process rights. Id. at 19-

  20. But as explained above, Colorado does not recognize reputation

  as a fundamental right or a liberty interest.

¶ 100   Even if Colorado did recognize such an interest, however,

  lifetime sex offender registration under CSORA is not based on an

  irrebuttable presumption of future recidivism. Rather, it is based on

  demonstrated past recidivism — juveniles who have been

  adjudicated of more than one sex offense. See Doe v. Moore, 410

  F.3d 1337, 1342 (11th Cir. 2005) (“Appellants argue that the Sex

  Offender Act violates substantive due process by creating an


                                    57
  irrebuttable presumption of dangerousness,” but “the Sex Offender

  Act here does not turn on the dangerousness of the offender, merely

  the fact that he or she was convicted.”).

¶ 101   CSORA does not say anything about a juvenile’s risk of

  recidivism or the juvenile’s current level of dangerousness. To the

  contrary,

              [t]he Colorado sex offender registry includes
              only those persons who have been required by
              law to register and who are in compliance with
              the sex offender registration laws. Persons
              should not rely solely on the sex offender
              registry as a safeguard against perpetrators of
              sexual assault in their communities. The
              crime for which a person is convicted may not
              accurately reflect the level of risk.

  § 16-22-110(8), C.R.S. 2018 (emphasis added).

¶ 102   Because the four cases on which T.B. relies all depend on

  irrebuttable presumptions, expressly or by necessary implication,

  they are distinguishable. See Vlandis v. Kline, 412 U.S. 441 (1973)

  (out-of-state applicants could never become residents for tuition

  purposes); Stanley v. Illinois, 405 U.S. 645 (1972) (unwed fathers

  could never be fit parents); Bell v. Burson, 402 U.S. 535 (1971)

  (fault warranted suspension of driving privileges); City & Cty. of

  Denver v. Nielson, 194 Colo. 407, 572 P.2d 484 (1977) (masseuse of


                                    58
  different sex than client will engage in illegal sex acts). Not so with

  CSORA.

¶ 103    For these reasons, I decline to apply the irrebuttable

  presumption doctrine to sex offender registration for repeat juvenile

  sex offenders.

        D. Lifetime Sex Offender Registration for Repeat Juvenile Sex
             Offenders Does Not Violate Procedural Due Process

¶ 104    T.B. argues that his due process rights were violated because

  had “judicial discretion and individualized assessment been allowed

  . . . [his] petition for removal from the sex-offender registry would

  have been granted.” I read this argument as invoking procedural

  due process.

¶ 105    Possibly recognizing the lack of a protected liberty interest,

  T.B. instead relies on his “property interests by authorizing

  law-enforcement agencies to charge $75 for initial registration and

  $25 for subsequent registrations.” But “the protections offered by

  procedural due process ‘are not as stringent when a deprivation of

  property is involved as opposed to a deprivation of a personal

  liberty.’” Colo. Ins. Guar. Ass’n v. Sunstate Equip. Co., 2016 COA




                                      59
  64, ¶ 54 (quoting Dewey v. Hardy, 917 P.2d 305, 308 (Colo. App.

  1995)) (cert. granted Oct. 31, 2016).

¶ 106   T.B. cites no authority that a registration fee — as opposed to

  a penalty — implicates due process. It does not. See Mueller v.

  Raemisch, 740 F.3d 1128, 1133 (7th Cir. 2014) (“A fee is

  compensation for a service provided to, or alternatively

  compensation for a cost imposed by, the person charged the fee. By

  virtue of their sex offenses the plaintiffs have imposed on the State

  of Wisconsin the cost of obtaining and recording information about

  their whereabouts and other circumstances. The $100 annual fee

  is imposed in virtue of that cost, though like most fees it doubtless

  bears only an approximate relation to the cost it is meant to offset.

  A fine, in contrast, is a punishment for an unlawful act; it is a

  substitute deterrent for prison time and, like other punishments, a

  signal of social disapproval of unlawful behavior.”); see also

  Kuhndog, Inc. v. Indus. Claim Appeals Office, 207 P.3d 949, 950

  (Colo. App. 2009) (“The imposition of penalties constitutes a

  deprivation of property and, therefore, implicates employer’s due

  process rights.”).




                                    60
¶ 107   Unlike a penalty, under CSORA, “[t]he amount of the fee shall

  reflect the actual direct costs incurred by the local law enforcement

  agency in implementing the provisions of this article.”

  § 16-22-108(7)(a). And failure to pay the registration fee does not

  result in criminal liability:

             The local law enforcement agency may waive
             the fee for an indigent person. For all other
             persons, the local law enforcement agency may
             pursue payment of the fee through a civil
             collection process or any other lawful means if
             the person is unable to pay at the time of
             registration. A local law enforcement agency
             shall accept a timely registration in all
             circumstances even if the person is unable to
             pay the fee at the time of registration.

  § 16-22-108(7)(b).

¶ 108   But even if T.B. has asserted a protected property interest, his

  due process argument ignores Colorado and Supreme Court

  precedent that a juvenile “has no procedural due process right to a

  hearing to prove a fact immaterial to the state’s statutory scheme

  before being required to register as a sex offender.” People in

  Interest of C.B.B., 75 P.3d 1148, 1151 (Colo. App. 2003).

¶ 109   In C.B.B., like here, the juvenile argued that he was denied

  procedural due process because CSORA “does not provide a hearing



                                    61
  to determine whether an offender is currently dangerous.” Id. at

  1149. The division disagreed. It held that a sex offender’s “current

  level of dangerousness is immaterial under [CSORA] because his

  duty to register was triggered solely by his conviction.” Id. at 1151;

  see also Conn. Dep’t of Pub. Safety, 538 U.S. at 7 (determining that

  procedural due process is satisfied where Connecticut sex offender

  registration is based “on an offender’s conviction alone — a fact that

  a convicted offender has already had a procedurally safeguarded

  opportunity to contest”).

¶ 110   Especially in light of Connecticut Department of Public Safety, I

  follow the division in C.B.B. and conclude that T.B. was not denied

  procedural due process.

  E. Lifetime Sex Offender Registration for Juveniles Does Not Violate
                       Substantive Due Process

¶ 111   Finally, I reject T.B.’s arguments that lifetime sex offender

  registration for juveniles is unconstitutional on its face and as

  applied to him because it violates substantive due process.

¶ 112   Under the rational basis test, a statute is presumed to be

  constitutional; the burden is on the party challenging the statute to

  establish beyond a reasonable doubt that the statutory provision



                                     62
  lacks a rational relationship to a legitimate governmental interest.

  Pace Membership Warehouse v. Axelson, 938 P.2d 504, 506 (Colo.

  1997). In conducting this review, “we do not decide whether the

  legislature has chosen the best route to accomplish its objectives.”

  Dean v. People, 2016 CO 14, ¶ 13. Instead, “[o]ur inquiry is limited

  to whether the scheme as constituted furthers a legitimate state

  purpose in a rational manner.” Id.

¶ 113   As the United States Supreme Court has explained, “[s]tates

  are not required to convince the courts of the correctness of their

  legislative judgments” under a rational basis review. Minnesota v.

  Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981). “Rather, ‘those

  challenging the legislative judgment must convince the court that

  the legislative facts on which the classification is apparently based

  could not reasonably be conceived to be true by the governmental

  decisionmaker.’” Id. (quoting Vance v. Bradley, 440 U.S. 93, 111

  (1979)); see FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)

  (A rational basis “may be based on rational speculation

  unsupported by evidence or empirical data.”); Bradley, 440 U.S. at

  108 (“Even if the classification involved . . . is to some extent both

  underinclusive and overinclusive, and hence the line drawn by


                                     63
  Congress imperfect, it is nevertheless the rule that in a case like

  this ‘perfection is by no means required.’” (quoting Phillips Chem.

  Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 385 (1960))). As

  everyone would agree, this test “imposes an admittedly enormously

  high bar for challengers seeking to invalidate perceived

  unconstitutional statutes.” Parker v. Webster Cty. Coal, LLC, 529

  S.W.3d 759, 771 (Ky. 2017).

¶ 114   Under these principles, “[a] statute can be stricken under the

  rational basis standard only if there exists no reasonably

  conceivable set of facts to establish a rational relationship between

  the statute and a legitimate governmental purpose.” Lobb v. Indus.

  Claim Appeals Office, 948 P.2d 115, 118 (Colo. App. 1997).

  Importantly, while a statute might create “a harsh result in some

  instances,” this “does not mean that the statute fails to meet

  constitutional requirements under the rational basis standard.” Id.

¶ 115   So, the sole question I must answer is this: Does lifetime sex

  offender registration for repeat juvenile sex offenders rationally

  relate to a legitimate governmental purpose? My answer is “yes.”




                                    64
¶ 116   According to the Colorado Bureau of Investigation website,5

  the goals of sex offender registration include enhancing public

  safety, deterring sex offenders from committing similar crimes, and

  providing an investigative tool for law enforcement. See Curtiss v.

  People, 2014 COA 107, ¶ 8 (Sex offender registration “aid[s] law

  enforcement officials in investigating future sex crimes.”); Jamison,

  988 P.2d at 180 (“[R]egistration is required in order to aid law

  enforcement officials in investigating future sex crimes and to

  protect the public safety.”).

¶ 117   T.B. does not argue — nor could he — that requiring lifetime

  sex offender registration for some adult offenders lacks a rational

  relationship to these goals. See People v. Harper, 111 P.3d 482, 485

  (Colo. App. 2004) (“[S]ex offenders have a ‘frightening and high’ risk

  of recidivism, see McKune v. Lile, 536 U.S. 24, 34 (2002); Smith v.

  Doe, 538 U.S. 84, 103 (2003) . . . .”).

¶ 118   Instead, he argues that the analysis changes when the

  offender was a juvenile at the time of the offenses. This is so, he

  continues, because lifetime registration for a juvenile is at odds with


  5
   Colorado Bureau of Investigation, Registration,
  https://perma.cc/HD4C-PYR4.

                                     65
  the juvenile justice system’s rehabilitative purpose and it is

  “overinclusive because it impacts many juveniles . . . who are

  unlikely to sexually offend as adults.” As to purported

  overinclusiveness, according to T.B., research shows that “juveniles

  adjudicated for sex offenses (even multiple sex offenses) are not

  likely to sexually reoffend as adults.” 6

¶ 119   To be sure, the “overriding goal of the Children’s Code [is] to

  provide guidance and rehabilitation to an adjudicated delinquent

  child in a manner consistent with the best interests of the child and

  the protection of society, ‘rather than fixing criminal responsibility,

  guilt, and punishment.’” S.G.W. v. People, 752 P.2d 86, 91 (Colo.

  1988) (quoting People in Interest of T.M., 742 P.2d 905, 907 (1987)).

  Yet, to the extent that the Children’s Code affords special treatment,

  T.B. received it in the underlying adjudication and sentencing. See


  6
    See Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 13
  (2013) (“This research shows that juveniles adjudicated delinquent
  for sex offenses have extremely low rates of recidivism generally and
  even lower rates of sexual reoffense.”); Human Rights Watch, Raised
  on the Registry: The Irreparable Harm of Placing Children on Sex
  Offender Registries in the US 28 (May 2013),
  https://perma.cc/B3E9-AT5S (“[I]f a history of child sexual
  offending is used to predict a person’s likelihood of future sex
  offending, that prediction would be wrong more than nine times out
  of ten.”).

                                      66
  United States v. Juvenile Male, 670 F.3d 999, 1014 (9th Cir. 2012)

  (“[A]dequate procedural safeguards at the conviction stage are

  sufficient to obviate the need for any additional process at the

  registration stage.”).

¶ 120   Further, requiring lifetime registration for certain juveniles

  aligns with the goal of the juvenile justice system to protect society.

  See In re J.W., 787 N.E.2d 747, 759 (Ill. 2003) (“Given the shift in

  the purpose and policy of the Juvenile Court Act to include the

  protection of the public from juvenile crime and holding juveniles

  accountable, as well as the serious problems presented by juvenile

  sex offenders, we find no merit to J.W.’s claim that requiring him to

  register as a sex offender for life is at odds with the purpose and

  policy of the Juvenile Court Act.”); In re M.A.H., 20 S.W.3d 860, 864

  (Tex. App. 2000) (“Although we are aware that the juvenile justice

  system is arranged with a special emphasis on the welfare of the

  child, sex offenders present special problems. In answer, the

  legislature enacted the registration . . . requirements in an apparent

  attempt to strike a balance between the goals of providing for the

  well-being of the child and protecting society from both the adult as

  well as the youthful sex offender.”).


                                     67
¶ 121   And in any event, the Children’s Code is a legislative creation,

  not implementation of a constitutional mandate. So, the General

  Assembly remained free to depart from some of its broader

  objectives in treatment of repeat juvenile sex offenders.

¶ 122   To the extent that research suggests some such juveniles

  subject to the lifetime registration requirements might not present a

  significant risk for recidivism, rational basis review in response to a

  facial challenge does not demand “mathematical exactitude.” City

  of New Orleans v. Dukes, 427 U.S. 297, 303 (1976); see People v.

  Parker, 70 N.E.3d 734, 755-56 (Ill. App. Ct. 2016) (“While not every

  offender is necessarily inclined to commit another sex offense,

  subjecting that group as a whole to certain restrictions does serve a

  legitimate state purpose which the SORA Statutory Scheme is

  rationally related to achieving, even though it may not be ‘finely-

  tuned’ to do so.” (quoting People v. Avila-Briones, 49 N.E.3d 428,

  451 (Ill. App. Ct. 2015))). Thus, the “mere failure of a governmental

  regulation to allow all possible and reasonable exceptions to its

  application is not sufficient to render the regulation

  unconstitutional.” Colo. Soc’y of Cmty. & Institutional Psychologists,

  Inc. v. Lamm, 741 P.2d 707, 712 (Colo. 1987); see People v. Pollard,


                                    68
  54 N.E.3d 234, 247 (Ill. App. Ct. 2016) (“Although the [sex offender

  registration] Statutory Scheme may be overinclusive, thereby

  imposing burdens on offenders who pose no threat to the public

  because they will not reoffend, there is a rational relationship

  between the registration, notification, and restrictions of sex

  offenders and the protection of the public from such offenders.”).

¶ 123   But what about T.B.’s argument that whatever may be true

  about other juveniles, his risk of sexually reoffending has been

  determined to be low and possibly zero? As discussed in Part II.B

  above, this argument ignores reasons beyond recidivism for

  requiring lifetime juvenile sex offender registration, such as

  deterring potential future offenders other than the recidivist 7 and

  providing an investigative tool for law enforcement. These interests

  remain unchanged regardless of the sex offender’s age or likelihood



  7
   T.B. conflates “general deterrence” of all citizens with “special
  deterrence” of the particular offender. See People v. Martin, 897
  P.2d 802, 804 (Colo. 1995); see also United States v. Under Seal,
  709 F.3d 257, 265 (4th Cir. 2013) (“[A]ny number of governmental
  programs might deter crime without imposing punishment. To hold
  that the mere presence of a deterrent purpose renders such
  sanctions ‘criminal’ would severely undermine the Government’s
  ability to engage in effective regulation.” (quoting Smith v. Doe, 538
  U.S. 84, 102 (2003))).

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  to reoffend. See J.W., 787 N.E.2d at 758 (“The public interest is to

  assist law enforcement in the protection of the public from juvenile

  sex offenders. The Registration Act as applied to a 12-year-old child

  serves that public interest by providing police officers ready access

  to information on known juvenile sex offenders.”); Vaughn, 391 P.3d

  at 1096 (“In protecting the public, [juvenile sex offender

  registration] aids in the prevention, avoidance, and investigation of

  future sex offenses.”); see also People v. Stevens, 91 N.Y.2d 270,

  274-75 (N.Y. 1998) (identifying legislation’s goals to protect the

  community from the dangers of recidivism by sex offenders, and to

  assist law enforcement in the investigation and prosecution of sex

  offenders); Doe v. Miller, 886 A.2d 310, 316 (Pa. Commw. Ct. 2005)

  (“Information on class members is gathered in order to protect

  against future offenses and to facilitate future investigations,

  thereby enhancing public safety and welfare.”), aff’d, 901 A.2d 495

  (Pa. 2006).

¶ 124   The General Assembly also could have concluded that the

  public has a legitimate interest in knowing the location of repeat sex




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  offenders — regardless of their likelihood of recidivism. 8 See Smith,

  538 U.S. at 101 (“The State makes the facts underlying the offenses

  and the resulting convictions accessible so members of the public

  can take the precautions they deem necessary before dealing with

  the registrant.”). That the public may overreact to this information

  is not a rational basis defect. Cf. State v. Imburgia, 2007-Ohio-390,

  ¶ 26, 2007 WL 274419, *4 (Ohio Ct. App. Feb 1, 2007) (“[T]he

  courts have no control over public reaction and any reprisal by a

  citizen certainly cannot be considered a ‘penalty’ which the court

  has imposed.”). And apart from enforcing constitutional limitations,

  “we may not substitute our judgment for that of the [General

  Assembly] as to the wisdom of the legislative choice.” People v.

  Zinn, 843 P.2d 1351, 1354 (Colo. 1993).

¶ 125   Given all of this, I reject T.B.’s claim that lifetime sex offender

  registration for repeat juvenile sex offenders violates substantive



  8
   The legislature need not have expressed this reason in enacting
  sex offender registration legislation to survive rational basis
  scrutiny. See United States v. Osburn, 955 F.2d 1500, 1505 (11th
  Cir. 1992) (“[A]ny rationale Congress ‘could’ have had for enacting
  the statute can validate the legislation, regardless of whether
  Congress actually considered that rationale at the time the bill was
  passed.”).

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  due process on its face or as applied to him, even in light of the

  district court’s determination on his risk of reoffending. T.B.’s

  arguments in favor of allowing all juveniles to petition for

  discontinuing registration raise policy considerations better weighed

  by the General Assembly. See Ruybalid v. Bd. of Cty. Comm’rs,

  2017 COA 113, ¶ 18 (“[M]atters of public policy are better addressed

  by the General Assembly,” not this court.) (cert. granted Apr. 30,

  2018); In re Welfare of C.D.N., 559 N.W.2d 431, 435 (Minn. Ct. App.

  1997) (“[W]e respectfully invite the legislature to review the

  prudence of requiring all juveniles adjudicated for criminal sexual

  conduct to register as predatory sexual offenders.”).

                              IV. Conclusion

¶ 126   I would affirm the order.




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