A federal court judge’s ruling finding that Colorado’s sex-offender registry violated the Constitutional rights of three sex offenders who sued could change the way the public gets access to the list.
U.S. District Court Judge Richard Matsch found that the Colorado Sex Offender Registration Act violates the cruel and unusual punishment clause of the Eighth Amendment of the U.S. Constitution, and the due-process rights guaranteed by the 14th Amendment.
Thursday’s ruling came in a civil case filed against Colorado Bureau of Investigation director Michael Rankin in 2013 by registered sex offenders David Millard, Eugene Knight and Arturo Vega.
Matsch found that the men are entitled to compensation and attorney fees, which will be determined later.
Technically, the ruling only applies to the three plaintiffs in the case, but it could lead to more universal impact — particularly if the 10th Circuit Court of Appeals upholds the decision on appeal, said Boulder attorney Alison Ruttenberg, the attorney for the three plaintiffs. There are similar cases in other states challenging sex-offender registries.
Ruttenberg said she expects the cases will eventually reach the U.S. Supreme Court.
“I would characterize this as a landmark case. 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,” Ruttenberg said Friday. “I would be surprised if the state doesn’t appeal the decision.”
Ruttenberg said that faulty research suggests that sex offenders have a high recidivism rate when only 5 percent of offenders are arrested for new crimes.
Matsch found that Colorado’s registration act poses a “serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public” for sex offenders and their families.
“The registry 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?” Matsch wrote in his ruling.
In answering his own question, he determined the law exposes sex offenders to punishments “not by the state, but by fellow citizens.”
“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,” Matsch wrote. “The failure to make any individual assessment is a fundamental flaw in the system.”
The ruling also criticized Colorado lawmakers who claimed that the sex offender act is not punitive.
Gov. John Hickenlooper’s office issued a statement on the ruling: “We are looking at the opinion and will take steps to ensure we are complying with the law. It’s too early to know what specific steps the legislature might take, but we must adhere to Constitutional protections.”
Nancy Lewis, executive director of Colorado Organization for Victim Assistance, said she doesn’t condone harassment of sex offenders but said the registry serves a critical purpose.
“I’m sorry there are people who would harass people because that is illegal, too,” Lewis said. “But we are trying to contain (convicted sex offenders) and hold them accountable.”
Matsch wrote that public shaming and banishment are forms of punishment considered cruel and unusual under the Eighth Amendment.
Each of the plaintiffs in the case sufficiently described instances where they were punished outside of the judicial system, Matsch wrote. Millard, for example, said he “suffered the indignity of being unable to find housing despite hundreds of applications.”
Another time, he was forced to move because of a TV news story focusing on sex offenders in apartment housing.
“Other evidence shows that these experiences are not isolated or unusual and that plaintiff’s experiences, fears and anxieties are not exaggerated or imagined,” Matsch wrote.
Matsch cited Englewood’s zoning ordinances that limit how near sex offenders can live to schools, day-care centers and other locations where children congregate, such as public swimming pools.
