Are Sex Offender Registries Unconstitutional?

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A sex offender registry, publicly listing those convicted of federal sex crimes, is important to give the community information to help keep children safe. However, it sometimes leads to absurd, or even tragic, results.

Take, for example, 19-year-old William Elliot. He had sex with his then-girlfriend who was a few weeks shy of her 16th birthday. Afterwards, Elliot was convicted as a sex offender and placed on the registry. Five years later, a gunman from Canada who was literally hunting for pedophiles found Elliot’s name on Maine’s sex offender registry.

He shot and killed Elliot.

In recent years, a debate has started brewing about the efficacy of sex offender registries. Again, the intention is good. These registries are meant to inform the public of potentially dangerous individuals. And yet, these registries have created creating serious issues for those who languish on them for their entire lives. These registries prevent low-risk offenders from finding work or places to live. In fact, some are forced into homelessness, simply because there are no places far enough from a child to live.

With that said, it is extremely important to not go easy on anyone who commits federal sex crimes. However, it is important to recognize the unintended consequences of these sex offender registries. The recent U.S. District Court of Colorado case, Millard v. Rankin, highlights this discussion. In this specific case, the court found that Colorado’s sex offender registry violated three convicts’ constitutional rights.

Basics of Federal Sex Crimes in the U.S.

In the United States, most criminal matters are handled in state courts. However, Congress has enacted multiple statutes so that serious sex offense can now be tried in federal courts. Those crimes include aggravated sexual assault, human trafficking, and other crimes involving children.

Upon conviction, an individual could be facing a prison sentence with a mandatory minimum, plus probation or parole, and fines. After serving their sentence, the person will likely need to add their name to the national sex offender registry. That means that the person must have their name, address, photo, and description of their offense publicly posted. The public will likely have access to that information for years to come.

Three registered sex offenders, David Millard, Eugene Knight, and Arturo Vega sued the Colorado Bureau of Investigation Director Michael Rankin. The Colorado Bureau of Investigation is the state agency responsible for maintaining the Colorado Sex Offender Registry (SORA). The plaintiffs’ claimed that the continuing enforcement of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the U.S. Constitution.

Millard v. Rankin: Recent Federal Case Finding Colorado’s Sex Offender Registry Unconstitutional

On August 31, 2017, the Supreme Court began the proceedings by noting the three plaintiffs’ fiscal and social hardships. One plaintiff stated that he could not visit the school that his children attended. Another said that he had been trapped on the list since he was 13, and now was struggling to find employment. The court also noted evidence from non-party witnesses showing that:

Registered sex offenders and their families and friends face a real and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public, directly resulting from their status as registered sex offenders, and regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes.

The court concluded that the SORA’s intentions were unintentionally punitive as the plantiffs were regularly subjected to extreme humiliation. But most significantly, the punishments the plaintiffs received came from the public, not the judicial system. In that vein, the court noted that:

The fear that pervades the public reaction to sex offenses – particularly as to children – generates reactions that are cruel and in disregard of any objective assessment of the individual’s actual proclivity to commit new sex offenses. The failure to make any individual assessment is a fundamental flaw in the system.

Accordingly, placement on the registry violated the plaintiffs’ Eighth Amendment right to be free of cruel and unusual punishment, and their due process rights under the Fourteenth Amendment.

Final Thoughts

While the debate regarding sex offender registries is just beginning, the recent Millard case is a significant step. It essentially acknowledges that the behavior of ordinary citizens towards those on the registry is so cruel that it is undermining the very purpose of the registry. While there is an important public safety aspect to sex offender registries, perhaps there are ways to give the public access to information without giving people a license to humiliate, harass, and mistreat the offenders, many of whom do not re-offend, and are trying to put their lives back together.

One solution might be to make the information publicly available, but not on the Internet. By requiring some effort to find the information (such as having it available at the local police station), only those trying to protect their children will take the time to find the information. Making it readily available on the Internet, however, makes it too inviting a target for those who want to wrap their cruel or murderous intentions in a blanket of righteousness, when it comes to sex crimes.

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