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People ex rel. T.B.

Court of Appeals of Colorado, Third Division

June 20, 2019

The People of the State of Colorado, Petitioner-Appellee, In the Interest of T.B., Juvenile-Appellant.

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

          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

          OPINION

          WELLING JUDGE.

         ¶ 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.

         ¶ 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.

         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 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) (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.").

         ¶ 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. 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: 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 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.

         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 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)).

         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 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] 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.

         ¶ 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 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 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.

         ¶ 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 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 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.

         ¶ 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 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).

         ¶ 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 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 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 ...


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