10th Circuit Says Colorado’s Sex Offender Registry is not Punishment

Colorado draws support of neighboring state AGs, while opponents say registries are ineffective, unconstitutional

The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.

A panel of judges on the 10th Circuit Court of Appeals on Aug. 20 upheld Colorado’s sex offender registry law, reversing a district court ruling that found the state’s registration requirements violated the constitutional rights of three men convicted of sex crimes. 

Despite being narrowly focused on the facts of the case, the decision highlights a debate playing out in states and federal circuits around the country regarding the consequences — intended or not  — of such registries.

In 2017, David Millard, Eugene Knight and Arturo Vega filed a civil rights lawsuit against the Colorado Bureau of Investigation arguing the Colorado Sex Offender Registry Act’s registration requirements constitute cruel and unusual punishment under the Eighth Amendment and violate their 14th Amendment right to privacy and due process. The district court ruled in their favor, finding the law unconstitutional as applied to them.

On appeal, the 10th Circuit considered the legislative intent behind the act as well as the effects of the law to determine whether the law’s registration requirements are a type of “punishment” — a first step in proving cruel and unusual punishment. 

Pointing to 10th Circuit precedent and the U.S. Supreme Court’s decision in the 2003 case Smith v. Doe, the appellate court concluded the act’s registration requirements don’t amount to a punishment. “This court has twice, and the Supreme Court has once, determined that sex-offender registration requirements were not ‘punishments’ because their respective legislatures lacked punitive intent and their application lacked punitive effect,” the 10th Circuit found. 

The legislature’s intent was “civil, and not punitive,” the court decided, as the registry was meant to protect public safety. The court also found the act’s effects are “not punitive enough to negate the legislature’s civil intent,” relying on the Mendoza-Martinez factors to determine whether a sanction is punishment. These factors include whether a measure resembles traditional forms of punishment, imposes a disability or restraint, promotes the traditional aims of punishment, has a rational connection to a nonpunitive purpose or is excessive with respect to that purpose.

The 10th Circuit also rejected the appellees’ substantive due process claims, finding CSORA is “rationally related to a legitimate government interest” — namely, the government’s interest in public safety.

The court’s decision only applies to Millard, Knight and Vega. But the issues in their case are so common among the 20,000 people on Colorado’s sex offender registry that, had they prevailed, it could have opened the doors to claims from similarly situated registrants, according to Laurie Kepros, director of sexual litigation at the Office of the State Public Defender.

The case drew attention from beyond state lines. Attorneys general from Oklahoma, Kansas, New Mexico, Utah and Wyoming filed an amicus brief in support of Colorado. The National Association for Rational Sex Offense Laws submitted an amicus brief supporting the appellees, as did 17 scholars from around the country who study sexual offenses.

Oklahoma Attorney General Mike Hunter called the decision “a major victory for public safety advocates.” Hunter led the amicus brief joined by the attorneys general from the other 10th Circuit states.

“Sex offenders are violent, and are statistically speaking, some of the most likely to reoffend. Online sex offender registries allow the public to know who among them is a child predator or has been convicted of rape,” Hunter said in a news release. “To hide this information in order to make individuals convicted of these crimes feel more comfortable is utterly irresponsible.”

However, many who oppose sex offender registries say studies don’t support the idea that registries improve public safety. In their amicus brief, the scholars argued Colorado’s registry is “packed with persons very unlikely to re-offend.” 

An oft-cited figure quoted in Smith v. Doe, the U.S. Supreme Court decision the 10th Circuit deferred to, claims that registrants re-offend at a rate of up to 80%. But according to scholars, that figure “was grounded on casual impression, not data, and has since been disavowed by the very sources the Court relied upon in making it.” In their brief, the scholars cited one study suggesting the three-year re-offense rate could be closer to 5% and referenced three other studies that “could find no effect of public notification on sex crime rates.”

“More and more studies have shown that registration requirements do not protect the public — they function only as a cruel punishment,” said Mark Silverstein, legal director at the American Civil Liberties Union, who represented the three men in their appeal.

“The state requires persons convicted of sex offenses to register for the rest of their lives and disclose address, job, vehicle, email address, which the state makes available for publishing on the internet, enabling social media vigilantes to pursue them, hound them, and pressure their potential employers, landlords and neighbors,” Silverstein said in an e-mail.

“Everyone, everyone except the court, knows that this is extra punishment imposed on people who have already served their time,” he added.

Kepros said the 10th Circuit has been “swimming upstream” and “clinging to some of the old rationales” when it comes to sex offender registry cases. In recent years, federal and state appellate courts have found registration requirements in other states to be punitive or unconstitutional. Restrictions on where registrants can live, work or travel have been struck down by the 6th Circuit and the state supreme courts of New York and California, and the supreme courts of Ohio and Pennsylvania found registration requirements for juveniles to be unconstitutional.

Colleen Kelley, a partner at Wolf Law who represents people convicted of sex crimes, said the 10th Circuit’s opinion surprised her in how “dismissive” it was in its conclusion that the Colorado Sex Offender Registry Act easily passes the legitimate government interest test, echoing the skepticism of the amici scholars and ACLU’s Silverstein about the law’s effect on public safety.

“They really gloss over this analysis of whether or not it constitutes punishment,” Kelley said. “And for the people who are living this, it absolutely feels like punishment.” 

“To me, [the 10th Circuit’s decision] doesn’t reflect that same amount of empathy that the lower court had in terms of seeing how it affected real people and simply disregarding the idea that this was in fact punishment.”

In comments to media, ACLU’s Silverstein said it would have been difficult to uphold the lower court’s ruling due to precedent. But Kepros, of the public defender’s office, told Law Week, “I think it could have come out a different way.”

“I think when your factors are this loose, courts can come to different outcomes, and maybe that’s a problem with the standards that are being used,” she said. Kepros added that the role of the internet has changed in the nearly two decades since the U.S. Supreme Court ruled on Smith v. Doe.

“We all know at this point that your internet presence is a major part of your personal and professional identity,” Kepros said. “And so, if you’re out in the world where that identity has got the word ‘sex offender’ scrawled all over it, it’s going to be hard for people to get beyond that to [become] productive members of society.”

“So you can say, ‘Well, we have precedent.’ But when the world around that precedent has changed, you hope that the courts will take that into account in deciding how to apply it.”

—Jessica Folker

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