Colorado § 16-22-110 - Colorado sex offender registry - creation - maintenance - release of information - data collection.

§ 16-22-110. Colorado sex offender registry - creation - maintenance - release of information - data collection.

(1) The director of the Colorado bureau of investigation shall establish a statewide central registry of persons required to register pursuant to section 16-8-115 or 16-8-118 or as a condition of parole or pursuant to this article, to be known as the Colorado sex offender registry. The CBI shall create and maintain the sex offender registry as provided in this section. In addition, the CBI shall be the official custodian of all registration forms completed pursuant to this article and other documents associated with sex offender registration created pursuant to this article.

(2) The sex offender registry shall provide, at a minimum, the following information to all criminal justice agencies with regard to registered persons:

(a) Identification of a person's registration status;

(b) A person's date of birth;

(c) Descriptions of the offenses of unlawful sexual behavior of which a person has been convicted;

(d) Identification of persons who are identified as sexually violent predators;

(e) Notification to local law enforcement agencies when a person who is required to register pursuant to section 16-22-103 fails to register, when a person is required to reregister as provided in section 16-22-108, or when a person reregisters with another jurisdiction in accordance with the provisions of section 16-22-108;

(f) Specification of modus operandi information concerning any person who is required to register pursuant to section 16-22-103.

(3) (a) In addition to the sex offender registry, the CBI shall maintain one or more interactive database systems to provide, at a minimum, cross validation of a registrant's known names and known addresses with information maintained by the department of revenue concerning driver's licenses and identification cards issued under article 2 of title 42, C.R.S. Discrepancies between the known names or known addresses listed in the sex offender registry and information maintained by the department of revenue shall be reported through the Colorado crime information center to each local law enforcement agency that has jurisdiction over the location of the person's last-known residences.

(b) The Colorado integrated criminal justice information system established pursuant to article 20.5 of this title shall be used to facilitate the exchange of information among agencies as required in this subsection (3) whenever practicable.

(3.5) The Colorado bureau of investigation shall develop an interactive database within the sex offender registry to provide, at a minimum, the following information to all criminal justice agencies in whose jurisdictions an institution of postsecondary education is located:

(a) Identification of all persons required to register pursuant to section 16-22-103 who volunteer or are employed or enrolled at an institution of postsecondary education and the institution at which each such person volunteers, is employed, or is enrolled;

(b) Identification of all persons who are sexually violent predators who volunteer or are employed or enrolled at an institution of postsecondary education and the institution at which each such person volunteers, is employed, or is enrolled.

(4) Upon development of the interactive databases pursuant to subsection (3) of this section, personnel in the judicial department, the department of corrections, and the department of human services shall be responsible for entering and maintaining in the databases the information specified in subsection (2) of this section for persons in those departments' legal or physical custody. Each local law enforcement agency shall be responsible for entering and maintaining in the databases the information for persons registered with the agency who are not in the physical or legal custody of the judicial department, the department of corrections, or the department of human services.

(5) The CBI, upon receipt of fingerprints and conviction data concerning a person convicted of unlawful sexual behavior, shall transmit promptly such fingerprints and conviction data to the federal bureau of investigation.

(6) (a) The general assembly recognizes the need to balance the expectations of persons convicted of offenses involving unlawful sexual behavior and the public's need to adequately protect themselves and their children from these persons, as expressed in section 16-22-112 (1). The general assembly declares, however, that, in making information concerning persons convicted of offenses involving unlawful sexual behavior available to the public, 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.

(b) Pursuant to a request for a criminal history record check pursuant to part 3 of article 72 of title 24, unless the person who is the subject of the criminal history record check was required to register solely because the person was adjudicated or received a disposition as a juvenile, the CBI may inform the requesting party as to whether the person who is the subject of the criminal history check is on the sex offender registry. If such person is on the sex offender registry solely as a result of being adjudicated or receiving a disposition as a juvenile, the CBI shall not release such information to a person other than law enforcement, probation and parole personnel, the division of child welfare, the division of youth services, or the victim, as defined in section 24-4.1-302 (5).

(c) A person may request from the CBI a list of persons on the sex offender registry. The list must not include persons who are on the sex offender registry solely for having been adjudicated or received dispositions as juveniles.

(d) (Deleted by amendment, L. 2005, p. 611, § 1, effective May 27, 2005.)

(e) Any person requesting information pursuant to subsection (6)(c) of this section shall show proper identification.

(f) If information is released pursuant to this subsection (6), it must, at a minimum, include the name, address or addresses, and aliases of the registrant; the registrant's date of birth; a photograph of the registrant, if requested and readily available; the offense that led to the registration requirement; and the date of the offense resulting in the registrant being required to register pursuant to this article 22. Information concerning victims must not be released pursuant to this section.

(g) Notwithstanding this subsection (6) to the contrary, the CBI may release information, as described in subsection (6)(i) of this section, about the person registered as a result of being adjudicated or receiving a disposition as a juvenile if a person, other than the victim, submits a request to the CBI for the sex offender registry record of a named person who was adjudicated or received a disposition as a juvenile, and the requesting person affirms in writing that the requested record shall not be:

(I) Placed in publication or posted to a website;

(II) Used for the purpose of obtaining a pecuniary gain or financial benefit for any person or entity; or

(III) Used or disseminated in any manner with the intent to harass, intimidate, coerce, or cause serious emotional distress to any person, including the named person.

(h) In addition to the written affirmation required by subsection (6)(g) of this section, the person requesting information shall affirm in writing that he or she has a need for the sex offender information concerning the person who was adjudicated or received a disposition as a juvenile and describe that need in writing.

(i) Upon receipt of the written affirmations required by subsections (6)(g) and (6)(h) of this section, the CBI shall release to the requesting person the sex offender registry record that is limited to include only the person's registration status, full name, aliases, date of birth, and current address or addresses; a photograph of the registrant, if requested and readily available; the offense that led to the registration; and the date of the offense as such information concerns the person who was adjudicated or received a disposition as a juvenile. Information concerning victims must not be released pursuant to this section.

(j) Nothing in this subsection (6) limits the victim's access to information pursuant to section 24-4.1-302.5.

(7) The CBI may assess reasonable fees for the search, retrieval, and copying of information requested pursuant to subsection (6) of this section. The amount of such fees shall reflect the actual costs, including but not limited to personnel and equipment, incurred in operating and maintaining the sex offender registry. Any such fees received shall be credited to the sex offender registry fund, which fund is hereby created in the state treasury. The moneys in the sex offender registry fund shall be subject to annual appropriation by the general assembly for the costs, including but not limited to personnel and equipment, incurred in operating and maintaining the sex offender registry. The sex offender registry fund shall consist of the moneys credited thereto pursuant to this subsection (7) and subsection (9) of this section and any additional moneys that may be appropriated thereto by the general assembly. All interest derived from the deposit and investment of moneys in the sex offender registry fund shall be credited to the fund. At the end of any fiscal year, all unexpended and unencumbered moneys in the sex offender registry fund shall remain therein and shall not be credited or transferred to the general fund or any other fund.

(8) Any information released pursuant to this section shall include in writing the following statement:

The 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.

(9) The CBI shall seek and is hereby authorized to receive and expend any public or private gifts, grants, or donations that may be available to implement the provisions of this article pertaining to establishment and maintenance of the sex offender registry, including but not limited to provisions pertaining to the initial registration of persons pursuant to section 16-22-104 and the transmittal of information between and among local law enforcement agencies, community corrections programs, the judicial department, the department of corrections, the department of human services, and the CBI. Any moneys received pursuant to this subsection (9), except federal moneys that are custodial funds, shall be transmitted to the state treasurer for deposit in the sex offender registry fund created in subsection (7) of this section.

(10) On or before July 1, 2022, and every July 1 thereafter, the CBI shall prepare a report that details the number of requests for sex offender registration information for juveniles received annually pursuant to subsection (6) of this section as well as the number of times such information was released. The CBI shall include the report as a part of its presentation to its committee of reference at a hearing held pursuant to section 2-7-203 of the "State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act".

Source: L. 2002: Entire article added, p. 1171, § 1, effective July 1; (1) amended, p. 500, § 5, effective July 1; (3.5) added, p. 1202, § 5, effective July 1. L. 2004: (2)(c), (3)(a), (6)(d), (6)(f), (7), and (9) amended, p. 1116, § 12, effective May 27. L. 2005: (6) amended, p. 611, § 1, effective May 27. L. 2021: (6) amended and (10) added, (HB 21-1064), ch. 320, p. 1964, § 5, effective September 1.

Editor's note: In People in Interest of T.B., 2021 CO 59, 489 P.3d 752, the Colorado Supreme Court held that mandatory lifetime sex offender registration under this act for offenders with multiple juvenile adjudications without a mechanism for individualized assessment or an opportunity to deregister upon a showing of rehabilitation is excessive and violates the prohibition on cruel and unusual punishments under the eighth amendment of the United States Constitution.

ANNOTATION

The intent of the Colorado Sex Offender Registration Act (SORA) registration requirements is nonpunitive. Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017), aff'd sub nom. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020); Melnick v. Camper, 487 F. Supp. 3d 1039 (D. Colo. 2020).

The effects of SORA as applied to registered sex offenders do not constitute punishment under the eighth amendment. First, SORA does not resemble public shaming. Second, SORA does not resemble banishment. Finally, the application of SORA to the offenders does not amount to probation. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020); Melnick v. Camper, 487 F. Supp. 3d 1039 (D. Colo. 2020).

SORA does not promote the traditional aims of punishment. Deterrent purpose alone is not enough to render a regulatory scheme criminal in nature. Tying the length of the reporting requirement to the nature of the offense, rather than individual risk, does not render the registration obligation retributive. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020).

SORA is rationally connected to the state's avowed regulatory purpose of public safety. Its requirements are keyed to the seriousness of the underlying sex-offense conviction, and are thus consistent with the regulatory objective of protecting public safety. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020).

SORA is not excessive in relation to its nonpunitive purpose. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020).

SORA does not violate substantive due process. There is a rational connection between it and the government's interest in public safety. The touchstone of due process is protection of the individual against arbitrary action of government, not the public. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020).

Unless registered sex offenders challenging its constitutionality connect SORA's alleged irrebuttable presumption of re-offense to a recognized fundamental constitutional right or explain why the presumption would be unconstitutional, the presumption does not offend substantive due process. Millard v. Camper, 971 F.3d 1174 (10th Cir. 2020).

The procedural protections attendant to a conviction for a criminal sex offense are sufficient to protect an offender's right to due process before being placed on a sex offender registry. Melnick v. Camper, 487 F. Supp. 3d 1039 (D. Colo. 2020).

The requirement for mandatory lifetime registration on the sex offender registry for twice-adjudicated juveniles, without the opportunity for individual assessment or the ability to deregister upon demonstrating rehabilitation, constitutes cruel and unusual punishment in violation of the eighth amendment. People in Interest of T.B., 2021 CO 59, 489 P.3d 752.

Analyzing any statute under the eighth amendment involves a two-part inquiry: (1) Is the registration requirement a "punishment", and, if so, (2) is it "cruel and unusual"? People in Interest of T.B., 2019 COA 89, 490 P.3d 455, aff'd in part, rev'd in part on other grounds, 2021 CO 59, 489 P.3d 752.

With regard to the first inquiry, 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. Because the 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 the lifetime registration requirement is excessive in relation to its nonpunitive purpose when applied to juveniles, it operates more like a punishment. People in Interest of T.B., 2019 COA 89, 490 P.3d 455, aff'd in part, rev'd in part on other grounds, 2021 CO 59, 489 P.3d 752.

SORA's forced signed statement requirement and being compelled to provide information under threat of a crime do not violate the fifth amendment. The required information does not implicate a substantial risk of self-incrimination. The registration requirement does not subject the offender to any additional criminal exposure or liability. Rather, it requires only an acknowledgment that the offender has been previously adjudicated or convicted of a crime. Melnick v. Camper, 487 F. Supp. 3d 1039 (D. Colo. 2020).

SORA does not violate the ex post facto clause. The general assembly did not intend SORA to be punitive or anything other than a civil proceeding. SORA's effects are not punitive enough to negate the legislature's civil intent. Melnick v. Camper, 487 F. Supp. 3d 1039 (D. Colo. 2020).

Residency of sex offenders. A municipal ordinance that effectively bans all felony and many misdemeanor sex offenders from living within its boundaries, but draws no distinctions based upon the nature of the offense, the treatment the offender has received, the risk that he or she will reoffend against children, and the evaluation and recommendations of qualified state officials, is preempted by state law. Ryals v. City of Englewood, 962 F. Supp. 2d 1236 (D. Colo. 2013). But see Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900.

City ordinance that effectively bars certain sex offenders from residing within the city is not preempted by state law. Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900.

The regulation of sex offender residency is, under the present pattern of state laws, a matter of mixed state and local concern. Ryals v. City of Englewood, 962 F. Supp. 2d 1236 (D. Colo. 2013); Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900.

The operational effect of the municipal ordinance impermissibly conflicts with the application and effectuation of the state interest in the uniform treatment, management, rehabilitation, and reintegration of sex offenders during and after state supervision. The ordinance not only undermines the underlying policy interests that envelop the existing state regulations, but it also operationally forbids what the state scheme allows. Ryals v. City of Englewood, 962 F. Supp. 2d 1236 (D. Colo. 2013). But see Ryals v. City of Englewood, 2016 CO 8, 364 P.3d 900, annotated above.