Colorado’s sex offender registry still hangs in limbo seven months after a judge said it violated the constitutional rights of former offenders, subjecting them to an extended punishment and public shaming.
U.S. District Judge Richard P. Matsch’s ruling is the latest to reject states that are reaching for more stringent controls on sex offenders even after they have served their sentences.
Criminal justice reformers say it’s about time the courts strike back. The lifelong punishments that sexual offenders face beyond the courtroom and prison conflict with the country’s tradition of rehabilitation and second chances, they say.
But with federal appeals courts now involved in scrutinizing laws in Colorado, Alabama and Michigan, state attorneys general say they are worried that their legislatures’ work to keep communities safe may be undermined.
“For the national database to work, the states and federal data need to be knitted together, and for one state to be exempted from the registry puts citizens of all states in danger,” Michael Hunter, Oklahoma’s attorney general, told The Washington Times.
He filed a brief defending Colorado’s sex offender registry at the 10th U.S. Circuit Court of Appeals. Kansas, Utah, New Mexico and Wyoming, which are also part of the 10th Circuit, signed on with Oklahoma.
Mr. Hunter said one 8-year-old girl wouldn’t be alive today if it weren’t for his state’s requirements for sex offenders.
Oklahoma requires a sex offender’s driver’s license to be designated with a mark. In 2014, that mark led to the apprehension of a sex offender who had kidnapped and raped the girl.
The offender was caught because a store clerk noticed his driver’s license designation when he went to purchase crayons and coloring books. She noted that an Amber Alert had been issued, ultimately leading to his arrest.
“This little girl in Oklahoma wouldn’t be alive right now if it weren’t for the fact that we have driver’s license designation in the state,” Mr. Hunter said.
In their legal brief, the states argue that the sex offender registries are needed because convicted sex offenders are more likely to commit sex crimes than any other group of people. They say sex offenders’ recidivism rates are 40 percent to 52 percent.
Catherine Carpenter, a professor at Southwestern Law School and an advocate for former offenders, disputes the numbers.
“This myth starts to develop that they [relapse] at a very high rate. … It gave state legislatures this green light,” she said.
Ms. Carpenter said state legislatures have been piling on requirements for former sex offenders since 2003, when the Supreme Court upheld Alaska’s online sex offender registry.
The requirements went from registering with state officials to restrictive housing and curfews on nights like Halloween, when children are out trick-or-treating.
Colorado’s law specifically deems that sexual offenders don’t have the same privacy rights as other released convicts. The state posts lengthy descriptions and photographs of those on its registry.
David Millard, the man challenging Colorado’s law after a 1999 guilty plea for sexual assault on a minor, said in the court case that his job at a supermarket is in constant jeopardy because the company, which he had to tell about his past, has said he can continue working as long as his conviction doesn’t become known.
He was transferred from one store to another after a customer discovered his record. He also struggled to find housing. He was ousted from one apartment after a local news report on sex offenders identified him.
He eventually bought a home and is subject to periodic visits by police. When he is not home at the time of the check-in, police post brightly colored “registered sex offender” tags on his door, Judge Matsch wrote. His neighbors, who used to be friendly, have started avoiding him and making pointed remarks, the judge said.
He ruled that the state’s registry law amounted to ongoing punishment for behavior beyond the normal prison sentences prescribed by law, with no consideration for an offender’s risk.
He cataloged other abuses, such as a teacher who was in danger of losing her job at a Catholic school after a parent saw her husband’s name on the registry. In that case, the archdiocese questioned whether she was wrong to remain married to her husband, the judge said.
One of the other plaintiffs in the Colorado case, Eugene Knight, convicted of attempted sexual assault on a child when he was 18, is barred from bringing his children into their school and must turn them over to a school employee on the sidewalk outside.
States’ differing rules can snare some convicts.
Michael McGuire served time in Colorado for raping his girlfriend in 1985. He went on to have a career as a hairstylist and jazz musician in the District of Columbia. In 2010, he and his wife moved to Alabama to care for his elderly mother.
When he arrived in Montgomery, Alabama, he was required to register as a sex offender under what a judge called the “most comprehensive, debilitating sex-offender scheme in the land.”
His wife lives in a house she rents from a family member, but sex offenders are prohibited in the area. One expert said during the case that 80 percent of Montgomery is out of bounds for those on the registry.
Unable to find a place, Mr. McGuire ended up homeless. He listed his residence in the sex offender registry as under a bridge. He has to check in personally each week with the Montgomery police and sheriff’s departments and must get approval from both departments before traveling outside the jurisdiction.
Judge W. Keith Watkins upheld most of Alabama’s law, saying the legislature had valid reasons for its restrictions. But he struck down the duplication for weekly check-ins and travel permits, saying it was overkill.
The case was sent to the 11th U.S. Circuit Court of Appeals.
The 6th U.S. Circuit Court of Appeals recently dealt a blow to Michigan’s sex offender registry.
The court ruled last year that Michigan couldn’t apply its sex offender registration law to those convicted before the state created its registry requirement.
The appeals court ruled that even people convicted of nonsexual offenses were ending up on the registry, forced into “years, if not a lifetime, of existence on the margins, not only of society but often, as the record in this case makes painfully evident, from their own families.”
The U.S. Supreme Court in October declined to take the case, and reform advocates said the state would have to rewrite its law. The state legislature is considering the matter, but no legislation has been introduced.
“We have begun to see positive incremental change in the last few years,” said Ms. Carpenter. “I think this last year has been a leap because of these federal court cases.”
Derek Logue, a former offender living in Ohio who runs the website OnceFallen.com, said the court victories have been slow in coming for those who are affected by the laws every day.
“We are living under laws that nobody else in America has to live under — not a murderer, not a terrorist, not an illegal immigrant, nobody else society hates or fears, just us,” he said.
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