Are sex offender registries unconstitutional?

A ruling coming out of a federal court in Denver this week could lead to a significant change in how the country deals with convicted sex offenders. Judge Richard Matsch heard a case involving three convicted sex offenders who were protesting having all of their personal information published on a public sex offender registry. Rather than ruling on whether or not the three could have their details removed (which was all that was requested), Matsch ruled that the entire registry was unconstitutional. This one is going to be appealed and if it makes it to the Supreme Court it could impact the laws in pretty much every state in the union. (CBS Denver)

A federal court judge in Denver has called the public sex offender registry in Colorado “cruel and unusual punishment.”

The Colorado Bureau of Investigation posts a list of registered sex offenders required under the law. It contains names, pictures, addresses, descriptions and more and readily available to anyone on the internet.

But now, Federal Judge Richard Matsch has found that to be a violation of the U.S. Constitution. He wrote that the public has been given the “power to inflict punishments beyond those imposed through the court.”

Alison Ruttenberg, the attorney for the sex offenders, told CBS4’s Rick Sallinger they were often scarred for life because of all the public information available on the convicted criminals.

In some ways this judge could be seen as swimming against the current. The Supreme Court has already heard challenges to the constitutionality of sex registries on a couple of occasions and has allowed them to stand. The most frequently cited case seems to be Smith v. Doe, a 2003 case out of Alaska. In it, Anthony Kennedy described how the court had to determine if lifetime registration on these publicly available lists constituted ex post facto retroactive punishment. His decision cited the “frightening and high risk of recidivism” among sex offenders as sufficient justification for the extra burden placed on them by the registry after completing the rest of the sentence.

That decision has been under criticism lately because the statistics on recidivism which were cited turned out to be completely flawed. (That’s not to say that the recidivism rate might not be very high, but the study they used is now largely discounted.) With that in mind, and this ruling as an initial step, I wonder if this somewhat restaffed court will see the question differently. It was only a 5-4 decision last time.

I’ve personally never been comfortable with the idea of lifetime registries. It’s a case which causes a lot of internal conflict because I personally find sex offenders to be among the worst, most monstrous class of criminals, and even more so when the victims include children. (Yes, we’re talking to you, Roman Polanski.) Even absent an actual murder, some of the worst are, in my opinion, suitable candidates for the death penalty. But when we convict someone of a crime and sentence them to some term in jail, perhaps with additional probation, it just seems as though that’s supposed to be the end of it. A lifetime on such a registry absolutely seems like a life sentence in some ways even though that’s not what the criminal was sentenced to.

There are no easy answers here as far as I’m concerned. But given how many people it would affect across the entire country, this one will be worth keeping an eye on.

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Jazz Shaw 7:31 PM on October 02, 2022