2026 CO 24, 24SC154 Beagle, Timothy v. People

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<!-- PageHeader="The opinion summaries are not part of the Colorado Supreme Court's opinion. They have been prepared solely for the reader's convenience. As such, they may not be cited or relied upon. If there is any discrepancy between the language in the summary and the opinion, the language in the opinion controls." -->

ADVANCE SHEET HEADNOTE

April 27, 2026

AS MODIFIED May 18, 2026

# 2026 CO 24M

No. 24SC154, Beagle v. People-Sexually Violent Predator Designation -Cruel
and Unusual Punishment.

The supreme court holds that the sexually violent predator ("SVP")
designation, under section 18-3-414.5(1)(a), C.R.S. (2025), and its accompanying
requirements do not constitute punishment under the Eighth Amendment to the
United States Constitution. We first assess the SVP designation's statutory
features under the framework in Ellingburg v. United States, 146 S. Ct. 564, 567-68
(2026), and determine that the General Assembly did not intend for the SVP
designation to be punishment. From there, we apply the seven factors enumerated
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and determine that the
SVP designation's punitive effects do not outweigh this nonpunitive intent by the
"clearest proof." Accordingly, the supreme court affirms the judgment of the court
of appeals.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 24M

Supreme Court Case No. 24SC154
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA594

Petitioner:
Timothy Paul Beagle,
V.

Respondent:
The People of the State of Colorado.

Judgment Affirmed
en banc
April 27, 2026

Opinion modified, and as modified, petition for rehearing DENIED. EN BANC.
May 18, 2026

Attorneys for Petitioner:

Megan A. Ring, Public Defender

Kevin M. Whitfield, Deputy Public Defender

Denver, Colorado

Attorneys for Respondent:

Philip J. Weiser, Attorney General

Jaycey DeHoyos, Assistant Attorney General

Denver, Colorado

Attorneys for Amicus Curiae ACLU of Colorado:

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Timothy R. Macdonald
Sara Neel
Emma Mclean-Riggs
Denver, Colorado

JUSTICE BOATRIGHT delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.
CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE GABRIEL, specially
concurred.

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JUSTICE BOATRIGHT delivered the Opinion of the Court.

11 At sentencing, the district court designated Timothy Paul Beagle as a
sexually violent predator ("SVP"). On appeal, Beagle argued that his SVP
designation constituted cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution. A division of the court of appeals
rejected this argument based on our precedent in Allen v. People, 2013 CO 44, 1 7,
307 P.3d 1102, 1105, which stated that an SVP designation "is not punishment."
People v. Beagle, No. 22CA594, 1 24 (Jan. 4, 2024). We granted certiorari to consider
(1) whether the SVP designation constitutes criminal punishment under the Eighth
Amendment, and (2) if so, whether it is cruel and unusual as applied to Beagle.1

T2
2 Because we determine that the General Assembly did not intend for the SVP
designation to be punishment and the designation's punitive effects do not
outweigh this nonpunitive intent by the "clearest proof," we hold that the SVP
designation and its accompanying requirements do not constitute punishment

1 We granted certiorari to review the following issues:

1\. Whether the sexually violent predator designation, under section
18-3-414.5(1)(a), C.R.S. (2024), is a criminal punishment under the
Eighth Amendment to the United States Constitution.

2\. Whether the sexually violent predator designation is cruel and
unusual punishment as applied to Petitioner.

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under the Eighth Amendment.2 We thus affirm the judgment of the court of
appeals.

## I. Background

### A. Facts and Procedural History

T3
3 In July 2019, Beagle, who was forty-nine years old, picked up two
sixteen-year-old girls who had run away from a treatment facility and allowed
them to stay in his home for ten days. During this time, Beagle provided the two
girls with drugs, repeatedly made sexual advances towards them, and subjected
one of them to sexual contact.

14 Beagle pleaded guilty to attempted sexual assault and distributing a
controlled substance to a minor. An evaluator from the Sex Offender Management
Board ("SOMB") conducted an assessment using the Sexually Violent Predator
Assessment Screening Instrument ("SVPASI"), which suggested that Beagle met
the criteria of an SVP. In particular, Beagle's Sex Offender Risk Scale ("SORS")
score was 34.8, more than twelve points over the threshold to be classified as an
SVP. Colo. Dep't of Pub. Safety, Div. of Crim. Just., 2023 SVPASI Handbook:
Sexually Violent Predator Assessment Screening Instrument 10-15 (Oct. 2023), https://
cdpsdocs.state.co.us/ors/docs/Risks/SVPASIHandbook.pdf [https://perma.cc/

2 In light of this disposition, we need not consider (1) Beagle's argument that the
SVP designation is cruel and unusual as applied to him or (2) the People's
argument that Beagle failed to preserve his Eighth Amendment claim.

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5REY-K8AP] ("SVPASI Handbook"). The district court found that Beagle met the
SVP criteria and designated him as an SVP. The court moreover found that the
SVP designation "is not punishment" and instead that its "stated purpose is to
protect the community." The district court sentenced Beagle to a total of fifteen
years in the custody of the Department of Corrections. Beagle appealed the district
court's order designating him as an SVP.

15
A division of the court of appeals affirmed, finding that the SVP designation
was not "punishment" under the Eighth Amendment. Beagle, 1 24. The division
rejected Beagle's argument that Allen, 17, 307 P.3d at 1105-which stated that an
SVP designation "is not punishment" - was abrogated by People in Interest of T.B.,
2021 CO 59, 173, 489 P.3d 752, 772-which held that mandatory lifetime
registration as applied to juvenile sex offenders was cruel and unusual
punishment. Beagle, 1 24. While the division stated that there was "arguable
tension" between Allen and T.B., it determined that T.B. did not "expressly
overrule" Allen because the cases "d[id] not address the same issue." Beagle,
TT 23-24. Thus, the division applied Allen and held that Beagle's SVP designation
was likewise not punishment. Id. at [ 24. We granted Beagle's petition for
certiorari.

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### B. The "Sexually Violent Predator" Designation in Colorado

16
The SVP designation is a heightened classification of sex offender which
carries the additional requirement of lifetime registration under the Colorado Sex
Offender Registration Act ("CSORA"), §§ 16-22-101 to -115, C.R.S. (2025), and
requires law enforcement to carry out additional community notification
protocols. The SVP designation and its associated requirements draw from four
different sources.

17
First, section 18-3-414.5, C.R.S. (2025), of the Criminal Code identifies the
criteria for the SVP designation. To be designated as an SVP, an offender must
(1) be eighteen years of age or older when the offense is committed; (2) be
convicted of an enumerated sex offense or an attempt, solicitation, or conspiracy
thereof; (3) have committed this offense against a victim who was a stranger to the
offender or who was a person with whom the offender established or promoted a
relationship primarily for the purpose of sexual victimization; and (4) be likely to
commit another qualifying sex offense based on the results of the SVPASI.
§ 18-3-414.5(1)(a)(I)-(IV), (2).

18 Second, section 16-11.7-103, C.R.S. (2025), of the Code of Criminal Procedure
creates the SOMB and delegates the creation of the SVPASI to this consultative
body. The SOMB is comprised of twenty-five experts in "adult and juvenile issues
relating to persons who commit sex offenses," including mental health

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professionals, law enforcement, criminal defense attorneys, and judges, among
others. § 16-11.7-103(1).

19 In cases concerning convicted adult sex offenders, a SOMB-trained
evaluator administers the SVPASI, which is designed to identify sex offenders who
are likely to commit another sexual assault. § 16-11.7-103(4)(d); SVPASI Handbook,
at 1, 3. Using the SVPASI, an evaluator can find that an offender is likely to
reoffend in one of three ways: (1) the offender has been previously convicted of at
least one felony sex offense or two misdemeanor sex offenses; (2) the offender
scores above a twenty-two on the SORS; or (3) the offender meets certain
psychopathy or personality disorder criteria. SVPASI Handbook, at 10-15.

110 The SORS formula assesses the risk that sex offenders will have "a new sex
or violent court filing within eight years of a conviction" for a qualifying SVP
offense. Id. at 12. SORS predicts that those who score above a twenty-two on the
assessment fall into a risk group with a 50-60% likelihood of reoffending.3 Id. The
SORS formula considers (1) the number of adult criminal cases filed; (2) the
number of juvenile delinquency cases filed; (3) the number of cases with a
revocation from probation or community corrections; and (4) the earliest sex

3 The SORS formula relies on data from the Colorado Judicial Branch's ICON Case
Management Information System. SVPASI Handbook, at 12.

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offense filing age.4 Id. at 12-13. The legislature has directed the SOMB to revise
the SORS formula to accommodate updated research "as appropriate."
§ 16-11.7-103(4)(d)-(e).

111 After the evaluator completes the SVPASI, the district court uses the results
as a "primary aid" to determine whether the offender qualifies for an SVP
designation under the criteria in section 18-3-414.5(1)(a). Allen, TT 15, 17, 307 P.3d
at 1107-08.

112 Third, CSORA features registration rules unique to those designated as
SVPs. Once designated as an SVP, an offender is required to register every three
months "for the remainder of [their] natural life," § 16-22-108(1)(d)(I), C.R.S.
(2025), and they may not petition for removal from those requirements,
§ 16-22-113(3)(a), C.R.S. (2025).

113 Fourth and finally, the Code of Criminal Procedure delineates additional
community notification procedures for SVPs. § 16-13-904, C.R.S. (2025);
§ 16-13-905(1), C.R.S. (2025). Because SVPs have been determined to pose a "high
enough level of risk" to their communities, § 16-13-901, C.R.S. (2025), each local
law enforcement agency must implement the SOMB's community notification
protocols for any SVP who lives within its jurisdiction. §§ 16-13-904, -905(1).

4 "Score = (# Adult Cases x 2.1) + (# Juvenile Cases x 3.1) + (# Revocation Cases x
2.2) - (Earliest Sex Offense Filing Age x .23)." Id. (emphasis omitted).

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Currently, these protocols require law enforcement to use either a town-hall style
meeting, or alternative methods like social media, to provide community members
with "relevant information" about SVPs living in their community. Colo. Dep't of
Pub. Safety, Div. of Crim. Just., SOMB Criteria, Protocols and Procedures for
Community Notification Regarding Sexually Violent Predators 13 (Apr. 2021),
https://dcj.colorado.gov/sites/dcj/files/documents/SVP%20Criteria%20Protoc
ols%20and%20Procedures%202021.pdf [https://perma.cc/RZR6-EXWJ] (“SOMB
Criteria, Protocols and Procedures for Community Notification").

## II. Analysis

114 We first lay out the appropriate standard of review in this case. Then, we
summarize the legal principles for assessing whether a law constitutes
punishment under the Eighth Amendment. From there, we assess the SVP
designation's statutory features, applying Ellingburg v. United States, 146 S. Ct. 564
(2026), to find that the legislature did not intend the SVP designation to be
punishment. Finally, applying the seven factors laid out in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-69 (1963), we determine that the effects of the SVP
designation are not so punitive that the scheme, by the "clearest proof," overrides
this nonpunitive intent. In so doing, we hold that the SVP designation and its
accompanying requirements do not constitute punishment under the Eighth
Amendment.

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### A. Standard of Review

115 We review constitutional questions de novo. Lucero v. People, 2017 CO 49,
[ 13, 394 P.3d 1128, 1131. We also review questions of statutory interpretation de
novo. Dubois v. People, 211 P.3d 41, 43 (Colo. 2009). Statutes are entitled to a
presumption of constitutionality; thus, under our separation-of-powers doctrine,
we will not declare a statute unconstitutional without a showing that it is
unconstitutional beyond a reasonable doubt. T.B., 1 25, 489 P.3d at 760.

### B. Legal Principles

116 The Eighth Amendment to the United States Constitution provides that
"[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const. amend. VIII.5 The Colorado
Constitution likewise bars "cruel and unusual punishments." Colo. Const. art. II,
§ 20. Evaluating whether a law constitutes "cruel and unusual punishment"
requires us to determine if it imposes punishment in the first place. Millard v.
Camper, 971 F.3d 1174, 1181 (10th Cir. 2020); see also Ellingburg, 146 S. Ct. at 566
(explaining that whether a measure is criminal punishment is a "threshold
question" to a similar constitutional challenge under the Ex Post Facto Clause).

5 The Eighth Amendment is applicable to the states through the Fourteenth
Amendment. See, e.g., Robinson v. California, 370 U.S. 660, 666 (1962).

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117 Whether a law imposes criminal punishment presents "a question of
statutory construction" that requires a court to first "consider the statute's text and
its structure" to determine whether the legislature intended the statute to be
punitive. Ellingburg, 146 S. Ct. at 566-67 (quoting Smith v. Doe, 538 U.S. 84, 92
(2003). If the "text and structure" demonstrate that the legislature intended "'to
impose punishment,' that 'ends the inquiry."" Id. at 568 (quoting Smith, 538 U.S.
at 92).

118 However, even if a court determines that the legislature intended the statute
to be nonpunitive, a measure may still be considered punishment if the
challenging party establishes by the "clearest proof" that the measure's punitive
effects outweigh this nonpunitive intent. Id. at 567 n.1 (quoting Kansas v. Hendricks,
521 U.S. 346, 361 (1997)); Smith, 538 U.S. at 92. Analysis of a statute's punitive
effects has traditionally taken place via the seven factors laid out in Mendoza-
Martinez. See, e.g., Smith, 538 U.S. at 97.

### C. Intent

119 Beagle maintains that the General Assembly intended for the SVP
designation to be punishment because it is partially housed in the Criminal Code
and does not otherwise have a legislative declaration espousing a nonpunitive

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purpose.6 Additionally, he argues that by placing the SVP designation "near" the
section defining "[h]abitual sex offenders against children," § 18-3-412, C.R.S.
(2025), the legislature communicated a punitive intent akin to this criminal
sentence enhancement. Moreover, he contends that the SVP designation is "part
of a criminal sentence," indicating punitive intent, because the SVPASI evaluation
is conducted "as a part of the [presentence investigation]" and because the
designation itself is entered on the mittimus.

120 Following oral argument here, the U.S. Supreme Court announced
Ellingburg. Beagle submitted Ellingburg as a supplemental authority, deeming it
relevant to his claim that the legislature intended for the SVP designation to be
punishment. In Ellingburg, the Court analyzed the "text and structure" of the
Mandatory Victims Restitution Act ("MVRA") and found that Congress intended
the statute to be criminal punishment. 146 S. Ct. at 569. In so doing, the Court
identified several statutory features of the MVRA which "ma[de] abundantly
clear" that, when "viewed as a whole," the act imposed punishment. Id. at 567.
These features included: (1) the MVRA "label[ing] restitution as a 'penalty' for a
criminal 'offense""; (2) restitution being imposed during sentencing; (3) the
government, not the victim, being the party adverse to the defendant when

6 The SVP statute itself does not include any legislative declaration.
See § 18-3-414.5.

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restitution is ordered; (4) allowing restitution for misdemeanors to be imposed "'in
lieu of'" other punishments, such as imprisonment, making it the "sole
punishment" for those offenses; (5) allowing noncompliance with restitution
payments to result in a court modification of supervised release, probation, or
even imprisonment; and (6) the MVRA being codified in the criminal code. Id. at
567-68 (quoting 18 U.S.C. § 3663A(a)(1)).

121 To be sure, the SVP designation scheme shares some of the statutory
features identified by Ellingburg: the SVP designation is imposed at sentencing; the
People remain an adverse party; the designation is located in the criminal code;
and compliance with sex-offender registration is often a condition of probation or
parole, so noncompliance could result in a modification of such terms.

[22 But, the SVP designation definitively lacks the remaining two statutory
features identified in Ellingburg: it is not labeled a penalty for a criminal offense,
and it is not imposed "in lieu of" other punishments.

123 While the MVRA labeled restitution as a "penalty," id. at 567 (quoting
18 U.S.C. § 3663A(a)(1)), nowhere in the SVP scheme is the designation or any of
its associated requirements labeled a "penalty." To the contrary, section
16-22-112(1), C.R.S. (2025), explicitly states that community notification under
CSORA should not "be used to inflict retribution or additional punishment on any
person." Moreover, the additional community notification requirements for SVPs

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under sections 16-13-901 to -906, C.R.S. (2025), are accompanied by a clear
legislative declaration emphasizing that such community notification "should
only occur in cases involving a high degree of risk to the community" and should
focus on "providing additional information and education to the community."
§ 16-13-901 (emphasis added). This indicates that the legislature intended the SVP
designation to protect and educate communities, not punish offenders.

124 Additionally, the Court in Ellingburg explained that, per the MVRA,
restitution may be imposed "'in lieu of'" misdemeanor punishments, "making
restitution the sole punishment for a federal offense in certain circumstances."
146 S. Ct. at 567 (quoting 18 U.S.C. § 3663A(a)(1)). Not so with the SVP
designation. Unlike the MVRA, there is no language in section 18-3-414.5 itself,
nor in the relevant sentencing provisions, § 18-1.3-406, C.R.S. (2025), that allows a
sentencing court to replace any portion of a defendant's sentence with the SVP
designation.

125 Ellingburg's "viewed as a whole" language implies totality of the
circumstances review, 146 S. Ct. at 567, whereby this court should not seek to
"mechanically tally" factors, People v. McIntyre, 2014 CO 39, 1 20 n.2, 325 P.3d 583,
588 n.2. Evaluating the statutory features identified in Ellingburg, we are
particularly persuaded by the fact that the legislature did not label the SVP
designation as a penalty and that it even made assurances to the contrary in two

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different legislative declarations. Thus, when "viewed as a whole," the features of
the SVP designation do not indicate punitive intent. See Ellingburg, 146 S. Ct. at
567.

T26 Next, we turn to the seven Mendoza-Martinez factors to consider whether the
punitive effects of the SVP designation sufficiently outweigh the legislature's
nonpunitive intent.

### D. Effects

127 In arguing that the SVP designation's punitive effects override any lack of
punitive intent under Mendoza-Martinez, Beagle relies on our determination in T.B.
that lifetime sex-offender registration for juveniles constituted punishment. T.B.,
1 43, 489 P.3d at 765. He contends that the effects of the SVP designation and its
associated requirements are at least as punitive as the scheme in T.B .; meaning, the
SVP designation is likewise punishment.

128 To analyze whether a measure is punitive in effect, courts have considered
the seven factors articulated in Mendoza-Martinez; namely, whether a measure:
(1) "involves an affirmative disability or restraint"; (2) "has historically been
regarded as a punishment"; (3) "comes into play only on a finding of scienter";
(4) "promote[s] the traditional aims of punishment -retribution and deterrence";

(5) applies to behavior which is already a crime; (6) has "an alternative purpose to
which it may rationally be connected"; and (7) "appears excessive in relation to

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the alternative purpose assigned." 372 U.S. at 168-69. These seven factors are
""neither exhaustive nor dispositive," but are instead "'useful guideposts," that
are "designed to apply in various constitutional contexts." Smith, 538 U.S. at 97
(first quoting United States v. Ward, 448 U.S. 242, 249 (1980); and then quoting
Hudson v. United States, 522 U.S. 93, 99 (1997)).

129 We first compare this case to both Allen and T.B. and deem neither
controlling. Then, we apply these Mendoza-Martinez factors.

## 1. Neither Allen nor T.B. Controls This Analysis

130 Beagle challenges the division's reliance on Allen, which stated that the SVP
designation "is not punishment," 1 7, 307 P.3d at 1105, to hold that the SVP
designation was not punishment; he points out that Allen did not involve an
Eighth Amendment challenge and thus did not implicate the Mendoza-Martinez
factors. Instead, Beagle compares his case to T.B., which held that CSORA's
lifetime registration and community notification requirements, as applied to
juveniles, were punishment under Mendoza-Martinez. T.B., 1 43, 489 P.3d at 765.

131 We agree that Allen is distinguishable. Allen considered whether a trial
court had erred by designating an offender as an SVP even though the offender
did not score high enough on the SVPASI to meet the criterion. 11 2-3, 307 P.3d
at 1104-05. Thus, the issue in Allen was whether and to what extent trial courts
may deviate from the SVPASI in making an SVP determination, not whether the

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SVP designation was punishment under the Eighth Amendment. Id. at 1 5,
307 P.3d at 1105. So, we had no occasion to analyze the Mendoza-Martinez factors.
Our remark in Allen that the SVP designation is not punishment is not dispositive.7
132 Turning to T.B., although that case addressed a similar issue involving a
juvenile, it does not control our conclusion here. In cases that walk through the
seven Mendoza-Martinez factors, there will often be some tension between opinions
due to differences between statutory schemes. Therefore, our analysis must not
adopt, without examination, the conclusions of similar cases, such as that of T.B.
Prior cases addressing similar statutory schemes, though instructive, are not
binding, and we must instead conduct our own analysis of a measure's punitive
effects using a consistent and thoughtful review of the seven Mendoza-Martinez
factors.8

7 And, in fact, then-Justice Márquez noted in her concurrence in Allen that the issue
of whether the SVP designation was criminal punishment "was not squarely
raised" in that case, and so she would "simply assume, without deciding, that an
SVP designation is not criminal punishment." [ 28 n.5, 307 P.3d at 1110 n.5
(Márquez, J., concurring in the judgment).

8 We acknowledged as much in T.B .:

The statutory schemes challenged in each of the three cases [cited by
T.B.], much like the provisions of CSORA challenged by T.B., are
materially different than the more limited registration requirements
that the Supreme Court addressed in Smith. We thus cannot
mechanically apply Smith's holding and reasoning without
accounting for these differences.

T 40, 489 P.3d at 764.

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133 Upon review, we view T.B. as distinguishable for two reasons. First, T.B.
analyzed lifetime sex-offender registration as applied to juveniles. 1 2, 489 P.3d at
755-56. Under the seventh Mendoza-Martinez factor, we deemed lifetime
registration for juveniles excessive because it (1) "brands juveniles as irredeemably
depraved based on acts committed before reaching adulthood," (2) disregards
juveniles' "tremendous capacity" for reform, and (3) applies for a greater
percentage of a juvenile's life by the "very fact of an offender's youth." Id. at [1 2,
32, 489 P.3d at 755-56, 762. We also judged inapposite Smith, in which the Supreme
Court held that the sex-offender notification requirements at issue did not
constitute public shaming because they involved the "dissemination of accurate
information about a criminal record, most of which is already public." T.B., 1 52,
489 P.3d at 767 (quoting Smith, 538 U.S. at 98). We emphasized that this rationale
did not necessarily apply in the juvenile context, and so "[t]he dissemination of
information about juvenile sex offenders thus appears more punitive in light of the
presumptive confidentiality of most other juvenile adjudications." Id. (emphasis
added).

134 Second, in T.B., we determined that CSORA's automatic lifetime registration
requirement for repeat juvenile offenders was retributive under the fourth
Mendoza-Martinez factor because there was no individualized risk assessment.
T.B., 1 74, 489 P.3d at 772.

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135 In contrast, here, the SVP designation applies only to adult offenders,
§ 18-3-414.5(1)(a)(I), whose conviction information is already a matter of public
record. Moreover, the designation only applies to such offenders after the
completion of an individualized risk assessment via the SVPASI.
§ 16-11.7-103(4)(d).

136 Therefore, neither Allen nor T.B. explicitly addressed the issue presented
here: whether the SVP designation or its associated requirements is criminal
punishment under the Eighth Amendment. The ultimate question remains
whether the punitive effects of the law are so severe as to override the legislature's
nonpunitive intent by the "clearest proof," an analysis we approach by weighing
the seven Mendoza-Martinez factors.

## 2. The Seven Mendoza-Martinez Factors

137 Applying the seven Mendoza-Martinez factors to this case, we conclude that
two of them weigh in favor of finding the SVP designation punitive, one is neutral,
and four weigh against.

138 We begin with the two factors weighing toward punishment. First, as we
acknowledged in T.B., there are ways that the sex-offender registration and
community notification programs here resemble a historical form of
punishment -namely, public shaming and humiliation. 1 52, 489 P.3d at 767.

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139 Specifically, Beagle maintains that community notification via a town-hall
meeting resembles public shaming.9 And, in its amicus brief, the American Civil
Liberties Union of Colorado ("ACLU") takes issue with the alternative to a town-
hall meeting most often employed by localities, where police departments publish
the required information to their Facebook pages. The ACLU claims that this
"functions as a state-sanctioned platform for the public to shame and threaten
SVP-designated people" given that the comment sections "are filled with vitriol
and threats."

140 Although we acknowledge this argument, we also note that it carries limited
contextual weight. Public shaming is typically understood to involve
confrontation that is both "direct" and "face-to-face," Smith, 538 U.S. at 98, yet
nothing in the community notification statute mandates such face-to-face
confrontation, see §§ 16-13-904, -905. In fact, SVPs are not to be permitted to attend
the community notification meetings, eliminating the risk of any face-to-face
confrontation. SOMB Criteria, Protocols and Procedures for Community Notification,
at 49. Additionally, any shaming that occurs via "vitriol and threats" in the
comment sections of social media posts is not government sponsored. The statute

9 Beagle also argues that the SVP designation resembles "banishment" and
"parole" under this factor. But his banishment argument focuses on municipal
residency restrictions, the constitutionality of which is not before us. As for parole,
we later address this vis-à-vis the "affirmative disability or restraint" factor.

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only requires the SOMB to ensure that community notification occurs,
§ 16-13-904(2), and the SOMB itself provides municipalities with numerous
options -including posting on social media - to provide that notice. The fact that
some community members choose to leave these types of comments does not
transform community notification into "public shaming."

141 Second, under the fifth Mendoza-Martinez factor, the SVP designation only
applies to behavior that is already a crime, given that it is imposed on those who
have been convicted of a sex offense. § 18-3-414.5(1)(a)(II).

142 As we mentioned, one factor is neutral to our analysis here: whether the law
involves an affirmative disability or restraint. We recognize that the burdens of
CSORA's registration requirements-in particular their lifetime span-impose
certain restraints. But the U.S. Supreme Court has set a high bar for what
constitutes an affirmative disability or restraint, generally comparing measures
against the "infamous punishment' of imprisonment." Hudson, 522 U.S. at 104
(quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)). In Smith, the Court found
that Alaska's lifetime sex-offender registration requirements did not constitute an
affirmative disability or restraint because they did not "resemble imprisonment,
the paradigmatic affirmative disability or restraint." 538 U.S. at 86 (citing Hudson,
522 U.S. at 104). And, while Beagle argues that the designation resembles parole
or probation, Smith distinguished parole or probation from Alaska's SVP

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scheme- where offenders were "free to move where they wish and to live and
work as other citizens, with no supervision." Id. at 87. Colorado's SVP scheme
similarly does not restrict SVPs to the same degree as parole or probation.

143 The other arguments that Beagle makes regarding why he believes the SVP
designation is an affirmative disability or restraint are unpersuasive. Namely, any
threats to employment or housing are not removed in the absence of the SVP
designation and registration scheme. These are collateral consequences stemming
from the very nature of the underlying conviction. As the U.S. Supreme Court
noted in Smith, both landlords and employers often conduct criminal background
checks on prospective tenants and employees. Id. at 100. As we see it, "these
consequences flow not from" the SVP designation, but "from the fact of conviction,
already a matter of public record." Id. at 101. Thus, we see this factor as weighing,
at most, neutrally in our analysis here.10

144 The remaining four Mendoza-Martinez factors definitively weigh against
considering the SVP designation as punishment.

10 The constitutionality of municipal or federal restrictions on SVPs (e.g., residency
constraints) is not before this court today. We are concerned only with the relevant
Colorado state law regarding SVPs.

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145 First, the SVP designation does not require a finding of scienter. The SVP
designation is imposed based on the results of the SVPASI, which itself considers
many factors, see supra Part I.B., but not, in any way, the intent of a defendant.

146 Second, the SVP designation's operation does not necessarily promote the
traditional aims of "retribution and deterrence." Mendoza-Martinez, 372 U.S. at
168. Beagle argues that the SVP designation is retributive because it is imposed
for life, meaning it is not tied to a "current or reevaluated individualized risk
assessment" and is instead imposed as "retribution for a past offense."

147 But the fact that the SVP designation requires an individualized risk
assessment in the first place strongly supports the conclusion that the designation
is not retributive. In the context of sex offender statutory regimes, the existence of
an individualized risk assessment makes it less likely that the scheme is retributive
because such a tool seeks to measure the "danger of recidivism" rather than
impose punishment based on the "'extent of the wrongdoing."" Smith, 538 U.S. at
102 (quoting Doe I v. Otte, 259 F.3d 979, 990 (9th Cir. 2001)).

148 In Smith, the Supreme Court found that Alaska's sex-offender registration
requirements, which differentiated between "individuals convicted of aggravated
or multiple offenses and those convicted of a single, nonaggravated offense," were
not retributive because they were "reasonably related to the danger of recidivism."
Id. at 102. Likewise, in Hendricks, the Court concluded that a commitment

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determination under Kansas's Sexually Violent Predator Act was not retributive
even when it considered evidence of an offender's past sexually violent behavior
because it "does not affix culpability for prior criminal conduct." 521 U.S. at 362.
Instead, the Court noted that the Act considered past conduct explicitly for the
purposes of determining "future dangerousness." Id. Similarly, Colorado's SVP
designation scheme is always accompanied by an individualized risk assessment
tool, the SVPASI, to determine an offender's "danger of recidivism" rather than to
impose retribution.

149 Neither does the SVP designation sufficiently promote the traditional aim
of "deterrence" as conveyed by the fourth Mendoza-Martinez factor. Given that
"[a]ny number of governmental programs might deter crime without imposing
punishment," the "'mere presence'" of a deterrent effect does not alone render a
regulatory scheme punitive because this "would severely undermine the
Government's ability to engage in effective regulation."" Smith, 538 U.S. at 102
(quoting Hudson, 522 U.S. at 105).

150 Beagle does not otherwise demonstrate that the SVP designation promotes
"deterrence" of sexual assault. To begin, Beagle's reliance on the Colorado Bureau
of Investigation's ("CBI") stated goal that sex-offender registration in general
serves to further the "[d]eterrence of sex offenders for committing similar crimes,"
CBI, Registration: Goals of the Sex Offender Registry, https://apps.colorado.gov/

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apps/dps/sor/information.jsf [https://perma.cc/7CUX-DWFP], is unavailing
because CBI's identified goal related to sex-offender registration in general is not
dispositive.

151 Furthermore, the SVP designation does not promote the traditional aim of
deterrence when it advises community members about a potentially dangerous
individual. Registration and community notification alert potential victims about
an individual designated as an SVP. Thus, we see these measures as civil
regulatory means principally designed to keep a community safe by ensuring that
community members can take the steps needed to keep themselves safe.

152 Finally, both the sixth and seventh Mendoza-Martinez factors -whether a
measure is rationally related to a nonpunitive purpose and is not excessive
regarding that purpose-weigh against considering the SVP designation as
punishment.11 372 U.S. at 168-69. In addressing these two factors, the issue is not
whether the statute has a "close or perfect fit" with its nonpunitive purpose(s) or
whether the legislature "has made the best choice possible to address the problem
it seeks to remedy." Smith, 538 U.S. at 103, 105. The question is simply whether

11 The sixth and seventh Mendoza-Martinez factors are often discussed in tandem
given that the concepts of rational connection and excessiveness are logically
intertwined.

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"the regulatory means chosen are reasonable in light of the nonpunitive objective."
Id. at 105.

153 The legislative text associated with the SVP designation clearly indicates
that this nonpunitive purpose is "community protection."12 See § 16-22-112(1)
(explaining that CSORA aims to provide the public "access" to information);
§ 16-13-901 (noting that SVPs pose a "high enough level of risk to the community"
and that community notification is meant to spread "information and education
to the community concerning supervision and treatment of sex offenders").

154 And, the designation and its associated registration and notification
requirements are rationally related to community protection. They are tools that
enable law enforcement to notify community members about those offenders who
reside in close proximity to them and are deemed to have the highest risk of
reoffending.

155 Moreover, the SVPASI is a comparatively well-developed individualized
risk assessment tool strengthening the SVP designation's relationship to
community protection and lowering the risk that it is excessive by sweeping up
only those offenders deemed to have the highest risk of recidivism. Although

12 Beagle's arguments pointing to how the SVP scheme fails to improve offender
well-being or encourage rehabilitation misinterpret the purpose of the SVP
designation, which is community protection through education and notification,
not through offender rehabilitation. See § 16-22-112(1); § 16-13-901.

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Beagle argues that the SORS formula does not accurately assess the risk of
recidivism on sex offenses (because it relies on all past criminal history) and
otherwise provides no opportunity for reassessment, the SORS goes beyond the
relatively minimal risk assessment imposed by Alaska's scheme, which the
Supreme Court held was rationally related to "public safety." Smith, 538 U.S. at
87. Alaska's sex-offender registration scheme only differentiated between
individuals convicted of multiple or aggravated sex offenses and those convicted
of a single, nonaggravated sex offense. Id. Here, the SORS formula is an evidence-
based assessment that considers (1) the number of adult criminal cases filed; (2) the
number of juvenile delinquency cases filed; (3) the number of cases with a
revocation from probation or community corrections; and (4) the earliest sex
offense filing age. SVPASI Handbook, at 12; see supra Part I.B. Further, the SOMB
reports that "fewer than five percent of those assessed with the SORS will score
[twenty-two] or more." SVPASI Handbook, at 20.

156 While the ACLU and Beagle may raise legitimate concerns regarding the
statistical accuracy of the SORS and SVPASI to identify those offenders with the
highest risk of reoffending, we cannot cross into the policy-making powers of the
legislature. The sixth and seventh Mendoza-Martinez factors contemplate only
reasonableness, not statistical precision, and the SORS formula's reliance on all
past criminal history -including violent offenses-to predict whether a person

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will commit another sex offense is reasonable in part because sexual violence is
likely to be underreported. See, e.g., Nicholas Scurich & Richard S. John, The Dark
Figure of Sexual Recidivism, 37 Behav. Sci. & L. 158, 158, 161 (2019). We are not
tasked with assessing whether this approach is perfect, only whether it is
reasonable.

157 Ultimately, although certain effects of the SVP designation may resemble
punishment, they do not by the "clearest proof" outweigh the legislature's
nonpunitive intent.

158 Because we determine that the General Assembly did not intend for the SVP
designation to be punishment and the designation's punitive effects do not
outweigh this nonpunitive intent by the "clearest proof," we hold that the SVP
designation and its accompanying requirements do not constitute punishment
under the Eighth Amendment.

## III. Conclusion

159 For the foregoing reasons, we affirm the judgment of the court of appeals.
CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE GABRIEL, specially concurred.

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CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE GABRIEL, specially concurring.
160 Although I join the majority's opinion, I write separately to highlight
concerns with the sexually violent predator ("SVP") designation raised by
Colorado's Sex Offender Management Board ("SOMB") that warrant the General
Assembly's attention. In the nearly thirty years since it first became part of
Colorado law, scientific research has called into question the effectiveness of the
SVP designation in reducing recidivism and protecting the public. The SOMB
agrees and has repeatedly recommended that the General Assembly eliminate the
SVP designation and replace it with a system better aligned with modern research.
Given these concerns, I respectfully urge the legislature to review the relevant
research and consider whether the SVP designation continues to serve its intended
purpose.

161 The SOMB is statutorily charged with creating and maintaining the
standards for sex offender evaluation and treatment, as well as reviewing and
reporting on the evolving science in this area. § 16-11.7-103(4)(e), C.R.S. (2025). In
2016, 2019, and 2022, the SOMB made formal recommendations to the General
Assembly to eliminate the SVP designation entirely and replace it with a three-tier
system based on an updated risk classification system that better aligns with
modern research. Colo. Dep't of Pub. Safety, Div. of Crim. Just., SOMB Annual
Legislative Report: Evidence-Based Practices for the Treatment and Management of

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Adults and Juveniles Who Have Committed Sexual Offenses 31-33 (Jan. 2016) ("2016
Annual Legislative Report"), https://cdpsdocs.state.co.us/somb/resources/
SOMB2016AnnualLegislativeReport.pdf [https://perma.cc/8LDX-KKS7]; Colo.
Dep't of Regul. Agencies, Off. of Pol'y, Rsch. & Regul. Reform, 2019 Sunset Review:
SOMB 38-39 (Oct. 2019) ("2019 Sunset Review"), https://cdpsdocs.state.co.us/
dvomb/SOMB/WN/2019sunset.pdf [https://perma.cc/P3EY-WRVD]; Colo.
Dep't of Pub. Safety, Div. of Crim. Just., SOMB Annual Legislative Report: Evidence-
Based Practices for the Treatment and Management of Adults and Juveniles Who Have
Committed Sexual Offenses 26-28 (Jan. 2022) ("2022 Annual Legislative Report"),
https://cdpsdocs.state.co.us/dcj/DCJ%20External%20Website/SOMB/
Research.Reports/2022%20Legislative%20Report.pdf [https://perma.cc/T55L-
7FJA].

162 A decade ago, in 2016, the SOMB noted that federal law had not required
the use of the SVP designation since 2006, recommended the elimination of the
SVP designation, and encouraged exploration of a process to "reassess ... risk
classification ... based upon changes in [recidivism] risk over time." 2016 Annual
Legislative Report, supra, at 32-33. These recommendations align with modern
research showing that "sex offender recidivism risk declines substantially over
time as individuals remain in the community offense-free." Jill S. Levenson,
Melissa D. Grady & George Leibowitz, Grand Challenges: Social Justice and the Need

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for Evidence-Based Sex Offender Registry Reform, 43 J. Socio. & Soc. Welfare 3, 9, 14,
19-20 (June 2016); see also Molly J. Walker Wilson, The Expansion of Criminal
Registries and the Illusion of Control, 73 La. L. Rev. 509, 520-22 (2013) (collecting and
summarizing a series of studies on recidivism rates among sex offenders).

163 Three years later, in 2019, the SOMB emphasized again that the SVP
designation "is no longer accurate in the current system"; that "[c]urrent practice
eliminates the term 'sexually violent predator'" altogether; and notably, that "the
term may misrepresent the risk to the public and is therefore confusing to
members of the community." 2019 Sunset Review, supra, at 38.

164 Most recently, in 2022, the SOMB stressed once again that a growing body
of research has largely discredited classification systems like those in the SVP
designation for two reasons: (1) they do not accurately assess a person's recidivism
risk; and (2) mislabeling someone as higher risk than they actually are can increase
the risk of recidivism by depriving individuals of strong social ties and stable
housing and employment. 2022 Annual Legislative Report, supra, at 26-28; see also
Kristen M. Zgoba & Meghan M. Mitchell, The Effectiveness of Sex Offender
Registration and Notification: A Meta-Analysis of 25 Years of Findings, 19 J.
Experimental Criminology 71, 90 (Sep. 2021) ("Maintaining low or reduced risk
individuals on registries for a lifetime, or barring them from petitioning for
termination, may promote collateral consequences in the form of housing

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instability, employment instability, and internet bans, thereby further increasing
their risk of reoffending."); Levenson, et al., supra, at 9 (explaining that
"exclusionary practices activated by shaming labels can isolate stigmatized groups
from mainstream social life, solidifying one's deviant identity and fortifying
criminal behavior").

165 These consistent concerns flagged by the statutory body responsible for sex
offender evaluation and treatment standards in Colorado raise important
questions about whether the SVP designation continues to serve its intended
purpose. Although I join today's opinion, I note these concerns and respectfully
call the General Assembly's attention to them.