In Colorado, a person convicted of certain crimes can be designated a “Sexually Violent Predator” (SVP) at the time of sentencing. The SVP designation is a lifetime, unchallengeable determination that a person is high-risk to reoffend and must be subject to community notification. Courts have long held that SVP designation is not punishment for the purposes of the Eighth Amendment to the United States Constitution, because its purpose is to protect the community, and it is rationally connected to that purpose.
In 2021, the Colorado Supreme Court decided People in Interest of T.B., 2021 CO 59, concluding that unchallengeable lifetime sex offender registration is punishment for the purposes of the Eighth Amendment, because juveniles’ risk of re-offense is neither high nor persistent enough to justify lifetime registration as protecting the community. Mr. Beagle asserted that after T.B., SVP designation should be considered punishment and as applied to him, cruel and unusual punishment. The trial and appeals courts disagreed. The Colorado Supreme Court agreed to review both questions.
We filed an amicus brief in support of Mr. Beagle, arguing that the SVP designation is punishment for the purposes of the Eighth Amendment. We argued that the SVP designation is not rationally connected to protecting the community because it is a lifetime designation. The science is clear: even for the highest-risk sex offenders, risk declines over time offense-free in the community. We also described how community notification actually operates in Colorado, and its strong resemblance to the traditional punishment of public shaming. A life sentence to public shaming, with no empirical justification, is punishment, and the associated Eighth Amendment protections should apply.
