Sex Offender Registry

The Onerous Burdens of Sex Offender Registration Are Not Punishment, the 10th Circuit Rules. They Just Feel That Way.

According to the appeals court, the relevant question is what legislators were trying to accomplish.

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Online sex offender registries, which all 50 states maintain as a condition of federal funding, stigmatize the people listed in them long after they have completed their sentences, creating obstacles to housing and employment while exposing registrants to public humiliation, ostracism, threats, and violence. Three years ago, a federal judge ruled that such consequences amounted to cruel and unusual punishment of three men who challenged their treatment under Colorado's Sex Offender Registration Act. Last week a federal appeals court overturned that decision, saying the burdens imposed by registration do not even qualify as punishment, making the Eighth Amendment irrelevant.

While that conclusion might seem counterintuitive, it comports with the U.S. Supreme Court's understanding of sex offender registration, which it views as civil rather than punitive. Even though there is no evidence that publishing information about people convicted of sex offenses protects public safety, that is what legislators claim they are trying to do. And since their goal is prevention rather than retribution, the U.S. Court of Appeals for the 10th Circuit ruled, any harm inflicted by this policy is incidental.

That is not how it looks from the registrant's perspective. In Colorado, anyone convicted of a listed offense must register with local police either annually or quarterly for the rest of his life, although some sex offenders can eventually petition for relief from that requirement. The names, offenses, photographs, addresses, and birth dates of people with felony convictions are readily available online to the general public, which means their records follow them wherever they go, no matter when they committed their crimes or how long they stay out of trouble.

The lead plaintiff in this case, David Millard, pleaded guilty to second-degree sexual assault on a minor in 1999. He served 90 days in jail and eight years of probation, but that was not the end of his punishment.

Millard was forced to move repeatedly after his status as a registered sex offender was revealed, once by police and once by a local TV station. The second time, he had to fill out about 200 rental applications before finding an apartment he could rent. He nearly lost his job at a grocery store after a customer saw his name and photo on a sex offender website.

Millard later bought a house in Denver, which is periodically visited by police officers seeking to verify his address. "If he is not home when they visit," U.S. District Judge Richard Matsch noted in the 2017 decision that the 10th Circuit overturned, "they leave prominent, brightly colored 'registered sex offender' tags on his front door notifying him that he must contact the DPD."

As you might imagine, this public shaming makes things more than a little awkward with the neighbors. Millard has been a target of verbal abuse and vandalism, and he worries that worse may be coming. "Because of the fear and anxiety about his safety in public," Matsch wrote, "Mr. Millard does little more than go to work, isolating himself at his home."

Another plaintiff, Eugene Knight, was convicted of attempted sexual assault on a child in 2006 based on a crime he committed when he was 18. Like Millard, he served 90 days in jail and eight years of probation. Now a "full-time father" because he has been unable to find work that pays well enough to cover the cost of child care, Knight is not allowed on school grounds to drop off his kids or attend school events.

The third plaintiff, Arturo Vega, pleaded guilty to third-degree sexual assault, a crime he committed when he was 13. Although juvenile offenders generally are not included in Colorado's public database, Vega is listed there because he failed to comply with registration requirements he did not understand. He has tried twice to get off the registry. Both times his petitions were rejected by magistrates who insisted he prove a negative: that he was not likely to commit another sexual offense.

While acknowledging the price these men continue to pay years after completing their official sentences, the 10th Circuit said the relevant question is what Colorado legislators were trying to accomplish: "The statutory text itself explains that 'it [was] not the general assembly's intent that the information [contained in the Registry] be used to inflict retribution or additional punishment on any person,' but rather [the law] was intended to address 'the public's need to adequately protect themselves and their children' from those with prior sexual convictions." Even looking beyond that avowed intent, the appeals court added, registration does not have the hallmarks of a criminal penalty recognized by the Supreme Court.

Does registration "resemble traditional forms of punishment"? Matsch likened it to public shaming, banishment, and parole. The 10th Circuit rejected those analogies.

Does registration "impose an affirmative disability or restraint"? The 10th Circuit concluded that the policy's impact on the plaintiffs' "abilities to live, work, accompany their children to school, and otherwise freely live their lives" did not meet that test.

Does registration "promote the traditional aims of punishment"? Matsch noted that Colorado's registration requirements are based purely on the statutory classification of the offender's crime, rather than an individualized assessment of the danger he poses, which to his mind suggested retribution was one aim of the law. The 10th Circuit rejected that inference. Matsch also noted testimony in which the director of the state agency that maintains the sex offender database cited deterrence as one goal of registration. "Deterrent purpose alone is not enough to render a regulatory scheme criminal in nature," the 10th Circuit said.

Does registration have "a rational connection to a nonpunitive purpose"? Matsch conceded that point, and the appeals court thought it was enough to note that Colorado's law "requires more serious offenders to register more often than others," which gives you a sense of what rational means in this context.

Is registration "excessive with respect to [its] purpose"? Matsch thought the law's "very long registration requirements and substantial disclosure of personal information, without any individual risk assessment or opportunity to soften [its] requirements based on evidence of rehabilitation, were excessive in relation to [the law's] supposed public safety objective." The 10th Circuit said that conclusion was inconsistent with its precedents.

Other courts have been more receptive to the argument that registration is punishment by another name. In 2016, for example, the U.S. Court of Appeals for the 6th Circuit concluded that Michigan's sex offender registration scheme was punitive, meaning its requirements cannot be imposed retroactively. The supreme courts of several states, including Alaska, New Hampshire, and Pennsylvania, have reached similar conclusions.

But in the 10th Circuit, registration does not count as punishment, notwithstanding its onerous costs and dubious benefits. In practice, that analysis hinges on what legislators say they want to do, not what their law actually accomplishes.

NEXT: 'Silence Is Violence': D.C. Black Lives Matter Protesters Adopt Strategy of Intimidating Random White People

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  1. So by the logic of the court if you’ve finished your sentence and then are ordered to remain in jail for the rest of your life in order to prevent future crimes that’s OK, because the going to jail part is incidental to the primary objective of prevention.

    1. Why limit it to confinement? Why not just shoot them? That could also be called preventative.

      Or strap them to a chair in the middle of an empty field, with signs warning the public of the horror nearby. That they might starve to death, or be beaten to death, is just an inconsequential side effect of preventing further crimes.

      It reminds me of the rationalizations for allowing slander, libel, and defamation crimes and lawsuits, “shall make no law” notwithstanding; “freedom of speech” is a phrase with a longstanding history of meaning something other than its plain words. Or “the right to keep and bear arms” is just a phrase with a long history of exceptions for permits, restrictions, and exceptions, regardless of “shall not be infringed”.

      Government is always the evil.

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      2. Nice comment. Let me guess – you’re a Christian, right? Hey, smarty pants, did you bother to take notice of the age of these guys when they committed their “crimes”? Have you ever been a teenager and horny? Ever had sex with your high school whore of a GF? Did you know that … well obviously you don’t have a clue of anything… that teens only a couple of years apart in age can be considered illegal for sexual encounters?
        So… how many teenagers (i.e. “children”) would YOU like to shoot? Go ahead. Do it! See how far that gets you in court when you tell the judge you were “saving the world from… SEX!” Idiot. Go praise your Jesus character. No wonder you religious folks are all nuts. You believe in fairytales.

        1. You might consider recalibrating your sarcasmeter.

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  2. According to the appeals court, the relevant question is what legislators were trying to accomplish.

    I thought that was obvious. Whether you agree or disagree with sex-offender registration, the idea is that sex offenders behavior is based on an ingrained impulse, and so we’re afraid to let them melt back into society to re-offend. Therefore the registration is a way to track where they live after their incarceration is complete.

    I don’t agree with the process or its justification, but I think it’s quite that simple.

    1. Yet, the stats show, unless there is an underlying psychopathy, that sex offenders are not necessarily all that likely to repeat the offense. Maybe they should take into account how long someone stays on the list based on that, and not their “gut.” At the least, people who have not committed an offense for 20 years might be able to get off the list? It would make the list a lot more meaningful and useful.

      1. Yet, the stats show, unless there is an underlying psychopathy, that sex offenders are not necessarily all that likely to repeat the offense.

        That’s the argument against. The reasoning might be wrong, but I don’t know if anyone ever wondered WHAT the reasoning was.

    2. Except most things I’ve read put sexual crimes on par with other felonies for rates of recidivism, so why the focus on one and not the other? If you can justify it for sex crimes, you can justify it for all crimes.

      This is Puritanism disguised as concern.

      1. Good point: in fact, the recidivism rate for sex offenders is lower than most other violent crimes (I read somewhere a few years ago).

      2. Except most things I’ve read put sexual crimes on par with other felonies for rates of recidivism, so why the focus on one and not the other?

        Sex offenders are icky. Killers get compassion; touching kids gets you lynched.

        1. That does seem to be the state of things, yes.

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  3. “ while exposing registrants“

    Well chosen words indeed.

  4. I think we should use this with those affiliated with left wing organizations. Keep track of them make them wear something that identifies who they are. We should not suffer lefties in our midst unless they are controlled and kept out of positions of power and influence.

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  6. So can one of the courts where it is considered punishment issue a nationwide injunction against registering anyone?
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  11. I’d like to see average Joe Citizen use the government’s excuse.
    “I didn’t intend to kill that man, I merely pulled out my AR-15 and shot at him as merely a regulatory measure.”

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