Are Sex Offender Registries Unconstitutional?

This article was first written in late 2017. The section on the 2020 appeal was added later. The law may have changed since then.

If you or a family member is on a sex offender registry, or is facing a federal sex offense that could lead to one, you may wonder whether registration can be challenged in court. The short answer: so far, mostly no. The U.S. Supreme Court and the federal appeals courts have generally held that registration is not "punishment," so the constitutional rules about punishment do not block it. But the question keeps coming back, and a Colorado case shows why.

A sex offender registry is a public list of people convicted of sex crimes, including federal sex crimes. It is meant to give the community information to help keep children safe. But sometimes it leads to absurd, or even tragic, results.

Federal sex crimes and penalties

What happened to William Elliot?

Take the case of William Elliot, as reported in the news. At 19, he had sex with his girlfriend, who was a few weeks short of her 16th birthday. He was later convicted of a sex offense and placed on the registry. Five years later, a gunman from Canada who was hunting for people he believed were pedophiles found Elliot’s name on Maine’s sex offender registry.

The gunman shot and killed Elliot.

Why are people debating sex offender registries?

In recent years, people have started to debate whether sex offender registries work. The goal is a good one: to tell the public about people who may be dangerous. But the registries also create serious problems for people who stay on them for life. They can keep low-risk people from finding work or a place to live. Some people end up homeless because there is nowhere they are allowed to live that is far enough away from places where children gather.

None of this means people who commit sex crimes should be let off easy. But it is important to see the side effects of registries. People keep bringing court challenges because registration can make it very hard to find work and housing, and it can expose people and their families to harassment. The Colorado case Millard v. Rankin, discussed below, brought this debate into court.

Which sex crimes are federal?

In the U.S., most criminal cases are handled in state courts. But Congress has passed several laws so that serious sex offenses can be tried in federal court. These include aggravated sexual abuse, sex trafficking, and crimes involving children, such as child pornography.

After a conviction, a person may face a prison sentence with a mandatory minimum (a minimum the judge cannot go below), followed by supervised release (supervision after prison), plus fines. After prison, the person will likely have to register as a sex offender. That means their name, address, photo, and a description of the offense are posted publicly, often for many years.

How long does federal sex offender registration last?

The federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901 and following sections, sorts offenses into three tiers. Under 34 U.S.C. § 20915, registration lasts 15 years for Tier I, 25 years for Tier II, and life for Tier III. A Tier I registrant with a clean record can have the period cut by 5 years.

Knowingly failing to register when required is a federal crime under 18 U.S.C. § 2250, with up to 10 years in prison.

What has the Supreme Court said?

In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court looked at Alaska’s registry law. It held that the law was a civil, non-punitive rule, not punishment. Because of that, applying it to people convicted before the law passed did not violate the Ex Post Facto Clause, the part of the Constitution that bars adding punishment after the fact.

In Gundy v. United States (decided June 20, 2019), the Court rejected a challenge to the part of SORNA that let the Attorney General decide how the law applies to people convicted before SORNA was passed.

Who brought the Millard v. Rankin case?

Three people on Colorado’s registry, David Millard, Eugene Knight, and Arturo Vega, sued Michael Rankin, the director of the Colorado Bureau of Investigation. That state agency runs Colorado’s sex offender registry under the state’s Sex Offender Registration Act (SORA). The three men claimed that continuing to enforce SORA against them violated their rights under the Eighth and Fourteenth Amendments to the U.S. Constitution.

What did the trial court decide in Millard v. Rankin?

On August 31, 2017, the U.S. District Court for the District of Colorado ruled for the three men after a trial. Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017). This was a federal trial court, not the Supreme Court.

The court described the money and social hardships the men faced. One said he could not visit his children’s school. Another said he had been on the list since he was 13 and was struggling to find a job. The court also relied on evidence from other witnesses. In plain terms, the court found that registered people and their families and friends faced a real threat of retaliation, violence, shunning, shaming, and other unfair treatment from the public because of their registry status, no matter whether an individual assessment showed they were actually a danger.

The court found that, as applied to these men, the registry worked like punishment, even if that was not its purpose, because they were regularly exposed to severe humiliation. Most important, that punishment came from the public, not from a judge. The court said, in substance, that public fear of sex offenses, especially against children, leads to cruel reactions that ignore any real assessment of whether a person is likely to offend again. It called the lack of any individual assessment a basic flaw in the system.

So the court held that, as applied to the three men, the registry violated the Eighth Amendment’s ban on cruel and unusual punishment and their due process rights under the Fourteenth Amendment.

Was the Millard ruling reversed?

Yes. In 2020, the U.S. Court of Appeals for the Tenth Circuit reversed it. Millard v. Rankin, 971 F.3d 1174 (10th Cir. 2020). Relying on Smith v. Doe and its own earlier cases, the appeals court held that Colorado’s registration requirements were not punishment as applied to these men, so the Eighth Amendment did not bar them. It also rejected the substantive due process claims.

Is there a better way to run a registry?

The debate about sex offender registries is far from over. The 2017 Millard trial ruling was an important moment, even though it was later reversed. It recognized that the way some members of the public treat people on the registry can be so cruel that it works against the registry’s own purpose.

Registries serve a real public safety goal. But there may be ways to give the public information without giving some people an excuse to humiliate, harass, and mistreat registrants. Many registrants do not reoffend and are trying to rebuild their lives.

One idea is to keep the information public but not on the internet. For example, it could be available at the local police station. That would take some effort, so mostly people trying to protect their children would look it up. Putting it online makes it too easy for people with cruel or violent intentions to use it while claiming to be doing the right thing.

What does this mean for you?

Right now, a court challenge to registration is an uphill fight. Courts look closely at the specific rules in each state's law, and state courts can read their own constitutions differently, so results can vary by state and by person.

If you or a family member is facing a federal sex offense charge, registration is one of the most important long-term consequences to discuss with your lawyer before any plea.

Where can you read more?

Bloomberg opinion (2017): California is right to curb the sex offender registry

Women Against Registry: Millard et al. v. Rankin

What should you do next?

Book a consultation to talk it through with Brandon Sample.

Book a consultation