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September 1, 2017

Federal district judge finds Colorado's Sex Offense Registration Act, as applied, amounts to unconstitutional punishment

A couple of helpful readers made sure I did not miss a notable extended opinion concerning application of Colorado's sex offender registration laws. The opinion in Millard v. Rankin, No. 1:13-cv-02406 (D. Colo. Aug. 31, 2017), which can be downloaded below, starts and ends this way:

Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§ 16-22-101, et seq. In this civil action brought pursuant to 42 U.S.C. § 1983 they seek declaratory and injunctive relief, claiming that continuing enforcement of the requirements of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendant is the Director of the Colorado Bureau of Investigation (“CBI”), the state agency responsible for maintaining the centralized registry of sex offenders and providing information on a state web site....

Based on the foregoing, it is ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiff Arturo Vega, violates procedural due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates substantive due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and it is

FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).

Download 20170831 Millard Ruling re Sex Offender Registry

September 1, 2017 at 11:02 AM | Permalink

Comments

The lawyer I work for can use this opinion now! He has been representing a man convicted in 2002 in Maryland of two counts of statutory rape. The client served 18 months of his 10 year sentence in a county jail, with the balance probated. His Maryland criminal judgment provides that he was to serve 10 years on a sex offender registry following his release from prison. Soon after being released, he moved to Kentucky, where he registered as a sex offender, as required by Kentucky law. Unfortunately, the Ky. Department of Probation and Parole has advised him that under Kentucky law, he will have to remain registered for LIFE. It has now been more than 13 years since he was released from jail in Maryland. He successfully completed his probation and has never been arrested or accused on any crime since coming to Kentucky. The attorney has pursued an administrative appeal, which was denied without any hearing being held. The argument is that Kentucky should give FULL FAITH AND CREDIT to the 10 year limit for the client to have to register as a sex offender, as provided in his Maryland criminal judgment. This opinion may now enable him to file suit in U.S. District Court for the Eastern District of Kentucky, to seek injunctive relief.

Posted by: Jim Gormley | Sep 1, 2017 11:12:41 AM

This decision is self-evident. It is punishment. It is also regulatory quackery for the bad faith purpose of generating government employment.

However, the Supreme Court of the US disagrees.

Connecticut v. Doe, No. 01-1231

Posted by: David Behar | Sep 1, 2017 11:31:21 AM

What's notable about this opinion, to me, is not just that they consider SORA unconstitutional punishment, but to my understanding, this is the first judicial opinion to construe SORA as a violation of the Eighth Amendment.

True enough, it is an as applied challenge, but the facts that are presented by the plaintiffs are not really unusual at all in terms of the effects registration has on a person. In fact, I'd say they are somewhat below the mean, so to speak.

It's going to be very interesting to see how this case unfolds. I've been on the registry now for over a decade, and cruel and unusual punishment is -- in my experience -- the only accurate way to describe registration. Of course, I and roughly 800k+ other individuals, and their families, have known that for quite some time. That it is not merely a minor inconvenience, or that it has a de minims impact on people's lives -- it, in many aspects of one's life -- becomes the most salient fact about you. Good father? Good worker? Good husband? Volunteer at church? Who cares. You committed a crime ten, twenty, thirty years ago, for which society will continue to extract their putative pound of flesh until you are dead, and then even after you are dead.

Jon Ronson noted in his book on public shaming that such punishments died out in the colonial era because they were regarded as being far too brutal -- a fate worse than death, as commentators of the day suggested.

But they didn't die. They've become more efficient, more high-tech, and arguably, more brutal.

Posted by: Guy | Sep 1, 2017 1:07:39 PM

@Guy

More brutal for some, less brutal for others. The sanctimonious ego stroking that these laws enable means a great deal to the people who advocated for their passage.

Posted by: Daniel | Sep 1, 2017 1:34:55 PM

I'm sympathetic to the opinion, but skimming it, a core aspect is that basically it holds that a key Supreme Court opinion was mistaken on how such laws would affect people. But, the things cited weren't unknown at the time, including use of journalistic means to mine the registration to target the people involved. So, if this actually went to the Supreme Court, I question if the 8th Amendment section would hold up. The due process arguments very well might have a stronger grounding in precedent. This is an area ripe for re-examination though people around here might not like the end results given the membership of the Court.

Posted by: Joe | Sep 1, 2017 3:04:12 PM

Regulatory quackery should be criminalized. Megan opened the door to her neighbor, and was taken from us. No benefit from any registry.

Jessica slept in her bed. Her neighbor got in through the window and threatened to kill the other kids if she made a noise. The incompetent, PC constrained police visited him, since he was well known to them. They did not need no registry to know he had something to do with her disappearance. She was alive in his closet, but they were hamstrung by the lawyer traitor filth, and could not look in there. That protected, privileged, and empowered lawyer client was so cowardly, he could not kill her himself. So he put her and her plush blue dolphin in a garbage bag, and buried her alive. Then, on death row, he got anal cancer. You filthy lawyer traitors spend $100's of thousands on his cancer care. He died of his cancer. It was the medical profession that saw he got tortured by their treatment, and suffered to the very end. Is there anything more stupid and more insane than the lawyer profession? Not in this world, there isn't.

Neither of those two girls could have been helped by those quack registries. They could have been helped if those two lawyer clients had been executed at age 14.

You filthy lawyer criminal traitors owe us the lives of these two girls. Both serial child rapists and murderers were kept alive by your profession. It remains unknown how many dozens of or hundreds of kids they killed.

Posted by: David Behar | Sep 1, 2017 4:15:10 PM

This quackery law also puts law enforcement personnel at risk; not just the former sex offenders. By using the term, "law enforcement" personnel, I mean not only police officers, but parole officers, prosecutors, judges, but also the so-called law makers who authored these laws in the first place in order to con their constituents into thinking that they were makine the general public safe with such stupid laws.

I can think of at least two scenarios on how these registration/civil commitment laws can endanger law enforcement: the accidental response; and the deliberate response by the former sex offender.

In the accidental response scenario, for example, a former sex offender under residential home restriction during Halloween might mistake a police or parole officer for a vigilante or an intruder and feel the need to "stand his/her ground", viewing his/her home as his/her castle. I could just see the shock of the former sex offender suddenly realizing that he/she inadvertently shot a police officer instead of a burglar and, panicking, decides to flee the place to avoid a capital murder conviction.

In the deliberate response scenario, a former sex offender might be bitter after having served his/her time and feel the temptation for seeking revenge against these laws. In such a scenario, he/she might decide to booby-trap his/her property so that when a parole/police officer comes to the house without a search warrant, the former sex offender will give that person a "warm" welcome with the booby-trap. If the officer should die as a result of the trap, such a former sex offender will not care about the prospect of a possible death sentence and would probably attempt to escape before capture anyway.

So, my advice to these opportunistic politicians of either party who attempt to score points by appearing to be "pro-victim" or "tough on crime": if you really care about law-abiding crime victims and the welfare of our law-enforcement personnel, then don't put them at needless risk with a law that, in reality, does not make the law-abiding public or law enforcement personnel any safer from sex crimes or other violent crimes.

Posted by: william r. delzell | Sep 2, 2017 3:19:24 PM

The idea that registries are not punishment is a legal fiction. Not only are the registries themselves punishments, they are tied to countless additional punishments. In California, there are tons of extra laws that apply to registrants and nobody else. There are a lot of ridiculous unconstitutional laws, like saying you have to hand over all your online information, which as far as I know, haven't been formally struck down, leaving all registrants in a grey area.

The Supreme Court opinions are based on false information, such as claiming that recidivism for sex crimes is high when it is actually not. Every other type of criminal gets out of the system once they serve their time, but registrants are in the system for life, and tons of them get arrested and hit with serious prison time for petty technical violations. The registry is just an pretext that is used to keep arresting these people over and over and making sure they stay in custody, on probation, or on parole, their entire lives.

I would rather serve a 2 year prison term than accept registration with no jail time at all. It is just that bad. Not punishment? Hardly.

I hope this opinion goes somewhere and doesn't get shot down, but unfortunately I don't think we as a society have turned a corner on this nonsense yet. Maybe it won't happen for decades, or until someone who somehow managed to be sympathetic (not impossible given the wide net registries throw these days) suffered enormously because of the registry. Even getting killed doesn't matter as long as the person victimized a child, though, because the public secretly wants those people dead anyway.

Posted by: lawguy | Sep 2, 2017 6:52:29 PM

There is a better solution for male sex offenders: castration and no registration.
If they do not have the urge then they will not go after others illegally. There is nothing wrong with castrating a rapist.

Posted by: Liberty1st | Sep 2, 2017 10:24:41 PM

The previous comment once again assumes that all male sex offenders are contact offenders, rapists and should be castrated.
All sex offenders are not rapists! Skinny dipping, public urination, teenage sex, inadvertant downloading of porn, parental kidnapping of a child in divorce cases, all of these things can get you labeled "sex offender". How many times does that have to be explained?

You, your child or family member has a far better chance of "ending up on the registry" than being "victimized by someone on the registry".

The public needs to educate itself and stop this "crazy talk".

The movement to end the punative registry is gaining momentum, hopefully this case is a tipping point!

Until then, write to any of the Supreme Court Justices and tell them your story about the "cruel and unusual punishment" that the registry has inflicted on you and your family. Perhaps if they receive 860,000 letters from registrants, it may change their thinking.

Posted by: kat | Sep 3, 2017 9:50:44 AM

"I would rather serve a 2 year prison term than accept registration with no jail time at all. It is just that bad. Not punishment? Hardly."

I would not take this trade. I don't want to be in prison, subject to all the problems (in some cases rape; if I was labeled a "child abuser," I particularly fear my treatment inside) as compared to a registration. This in no way belittles the problems. But, especially for those with a certain means [such as someone with family who can house them, including in some isolated location; this very well might include those without much money], being outside of prison still is more important.

The strong problems with these marks of infamy should not lead to such comments. I will readily note that I'm sure there will be some difference of opinion even among those who served time. But, even they often would have to be doing a thought experiment in some sense.

Posted by: Joe | Sep 3, 2017 1:04:27 PM

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