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September 01, 2017

CO District Court Finds Sex Offender Registry 'Cruel & Unusual'

DENVER, Colo.—In an order issued yesterday, U.S. District Judge Richard Matsch found that forcing three plaintiffs, all men, to register with law enforcement officials under the Colorado Sex Offender Registration Act amounted to cruel and unusual punishment, violating their rights under both the Eighth Amendment of the U.S. Constitution, not to mention the due process clauses of the Fourteenth, in large part because the registry is a public document and had led to adverse consequences for the plaintiffs. For example, one plaintiff, David Millard, pled guilty in 1999 to second degree sexual assault on a minor, and as part of his sentence, he was on work release for 90 days and served an additional eight years on probation, during which time he completed sex offender treatment and committed no further criminal acts. However, the Sex Offender Registration Act (SORA) required Millard to register as a sex offender for ten years after the completion of his probation—and that's where the problems started. Millard almost lost his job with an Albertsons supermarket after a customer recognized him from a listing on the SORA website, and some of Millard's fellow employees spread the information to other store employees, forcing the company to relocate Millard to another store—and to warn him that he would lose his job if employees at the new store found out about his listing on the registry. Millard had also been forced to move from his apartment when his appearance on the registry became known, and though he now lives in what was his mother's house, local cops have visited the residence to make sure Millard still lives there, and if he's not home, they leave what the court described as "prominent, brightly-colored 'registered sex offender' tags on his front door notifying him that he must contact the DPD [Denver Police Department]. On one occasion a DPD officer hung a tag on his door even though Mr. Millard had spoken with the officer by telephone and explained he was at work and would not be home at the time of the visit. ... In following up from that incident, two DPD officers came to his house, banged noisily on the door, and loudly told Mr. Millard, in front of and in earshot of watching neighbors, that they were there to do a sex offender home check." Another plaintiff, Eugene Knight, became a stay-at-home dad after serving prison time for pleading guilty to "attempted sexual assault on a child." Though Knight successfully completed his parole for the offense, a previously ordered probation has never been revoked, and Knight isn't eligible to petition to be taken off SORA until 2021. That's created several problems for him, not the least of which is that the local school district won't allow him to walk his kids into their school and pick them up—or, indeed, to be present on any school grounds—due to his status on the registry. Again, Knight had completed sex offender treatment and had not had any run-ins with law enforcement at any time during his parole or probation. The third plaintiff, Arturo Vega, pled guilty to third degree sexual assault at age 15, for a crime committed when he was 13. He spent two years in a juvenile detention facility, where he received treatment for his sex offense and also for anger management, and upon release was placed on parole for one year, during which time he continued his therapy. Trouble was, he didn't understand the requirements to register as a sex offender—after all, he was a juvenile—and was convicted of a misdemeanor for failure to register. Though Vega doesn't appear on the Colorado Bureau of Investigation (CBI) website, he's still listed as a sex offender on SORA, and that's cost him jobs. He's filed two petitions to be removed from the registry, but both were denied, even though he had fulfilled all the requirements for removal. The reason? Vega couldn't prove to the magistrates' satisfaction that he wasn't "likely to commit a subsequent offense of or involving unlawful sexual behavior." In other words, contrary to the U.S. Constitution, Vega had to prove he would be unlikely to offend again—an impossible standard, and one which the court later described as "Kafka-esque." After hearing the unrebutted testimony of the plaintiffs and several non-party witnesses who were either former offenders themselves or people who were close to such people, Judge Matsch found, after a long discussion citing several Ninth Circuit and U.S. Supreme Court cases, that, "Weighing the factors considered in Smith v. Doe leads to the conclusion that SORA’s effects on these Plaintiffs are plainly punitive, negating the legislative intent... The Colorado General Assembly’s disavowal of any punitive intent is an avoidance of any responsibility for the results of warning the public of the dangers to be expected from registered sex offenders. The register is telling the public— DANGER – STAY AWAY. How is the public to react to this warning? What is expected to be the means by which people are to protect themselves and their children? As shown by the experience of these plaintiffs and the experience of others who have testified, the effect of publication of the information required to be provided by registration is to expose the registrants to punishments inflicted not by the state but by their fellow citizens." [Emphasis in original] "The record in this case reflects that maintaining the sex offender registry, requiring internet publication of information on the registry, and permitting republication of the information by private websites have effects that are analogous to the historical punishment of shaming and further resemble and threaten to result in effective banishment," Judge Matsch continued. "All three Plaintiffs have experienced these effects in varying degrees... Other evidence shows that these experiences are not isolated or unusual and that Plaintiffs’ experiences, fears, and anxieties are not exaggerated or imagined." The judge also found that with the SORA's requirement that registrants also report to authorities all of their "e-mail addresses, instant-messaging identities, or chat room identities prior to using the address or identity, as well as any changes of such addresses or identities," SORA registrants are effectively denied their First Amendment rights to communicate freely, and that in its operation, SORA was clearly punitive, even for defendants who had putatively served their sentences successfully and should have no more legal requirements upon them attendant to their crimes. "[A] convicted offender is knowingly placed in peril of additional punishment, beyond that to which he has been sentenced pursuant to legal proceedings and due process, at the random whim and caprice of unknowable and unpredictable members of the public," Judge Matsch observed. "This risk continues for the entire time a sex offender is on the registry, and perhaps even beyond that if he is fortunate enough to eventually deregister." In the end, Judge Matsch awarded the three plaintiffs "declaratory relief" from the "cruel and unusual punishment" effects of the SORA upon them, though he failed to issue a permanent injunction that would have kept them off the registry in the future—but the plaintiffs' attorney Alison Ruttenberg suggested that the judge's decision could have much farther-reaching consequences, especially if upheld by the Tenth Circuit Court of Appeals. "I would characterize this as a landmark case," Ruttenberg told the Denver Post. "My goal eventually is to get rid of this sex offender registration altogether, at least as it applies to a public registry that people can pull up on a website. I would be surprised if the state doesn’t appeal the decision." The ruling could also prove to be important to adult content producers and retailers, in part because three of the offenses that can land a person on the SORA in Colorado are "wholesale promotion of obscenity to a minor," "promotion of obscenity to a minor," and "criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this paragraph." Let's say you're a brick-and-mortar retailer in Colorado, and you inadvertently allow a minor to come into your store—and while the minor is there, police enter and bust you for the offense. No matter what criminal sentence or fine you receive from the magistrate, Colorado law appears to require that you register as a sex offender—and be subject to some of the same deprivations of rights as the three plaintiffs in this case. The same might apply equally to someone running a sexually explicit website or e-tail site based in Colorado, who allows access to, or allows a purchase by, a minor. And that's not all. In some states (not Colorado, though, for example, Ohio), an adult producer who makes "obscene" content or an adult retailer convicted of selling an "obscene" DVD to any customer can also be required to register as a sex offender, and could suffer the same consequences as the three plaintiffs here. Just something to think about—and perhaps work to get rid of publicly accessible sex offender registries. (H/t to Bill Dobbs for the info)

 
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