I wanted to say something about this decision last week, but I was too underwater with other projects, and quite frankly too depressed and angry about the subject of this (somewhat lengthy, sorry) missive to say anything other than write expletives over and over. Which, maybe that would improve my writing. I’ll give it some thought.
So I had a nice relaxing weekend. Caught up on sleep. This morning I woke up, meditated, worked out, strolled into the office, felt the morning sunshine on my face, filled up my coffee cup, sat down at my computer and am now ready to say it: the 10th Circuit Court of Appeals’ opinion in Millard v. Rankin is results-oriented, intellectually dishonest bullshit that makes a mockery of the idea of an independent judiciary, or the idea that the constitution — in practice, if not in theory — protects the rights of unpopular groups of people.
Millard is a case considering the application of Colorado’s sex offense registration scheme to three plaintiffs — David Millard, Eugene Knight, and Arturo Vega. The trial brought various claims, but in particular claims that the application of the registry as applied (as opposed to what’s referred to as a facial challenge) violated constitutional protections against Due Process and Cruel & Unusual Punishment.
Presiding over the trial was the late Richard Matsch (who also headed up Timothy McVeigh’s trial). In a 42-page opinion full of rich, narrative fact-finding, Judge Matsch held that in the plaintiffs’ cases, Colorado’s registry was unconstitutional in a number of respects. The real headline of the opinion was that he found that the registry was not only punishment (which many non-legal folks will be surprised to learn courts generally don’t consider them punishment at all) but that it was cruel & unusual punishment:
The registration requirements imposed by SORA, coupled with the actual and potential effects of being required to register, are not merely akin to historical punishments, as discussed above. As shown by the evidence in this case, SORA’s requirements, as applied to Plaintiffs, subject them to additional punishment beyond their sentences through the pervasive misuse and dissemination of information published by the CBI. Defendant has offered no evidence that any Plaintiff presents an objective threat to society, such as a material risk of recidivism. Yet Plaintiffs have been and continue to be subjected to actual and potential dangers of ostracism and shaming; effective banishment and shunning in the form of limitations on their abilities to live and work without fear of arbitrary and capricious eviction, harassment, job relocation, and/or firing; significant restriction on familial association; and actual and potential physical and mental abuse by members of the public who for whatever reason become aware of their status as a registered sex offender. They are also subject to exposure by local law enforcement agencies making checks of their residences, as happened with Mr. Millard.
All of these are foreseeable consequences of the registry. Indeed, the CBI acknowledges the risk of public harassment and worse by placing a warning on its website that information obtained there is not to be used for improper purposes. Thus, a convicted offender is knowingly placed in peril of additional punishment, beyond that to which he has been sentenced pursuant to legal proceedings and due process, at the random whim and caprice of unknowable and unpredictable members of the public. This risk continues for the entire time a sex offender is on the registry, and perhaps even beyond that if he is fortunate enough to eventually deregister.
This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten Plaintiffs with punishment disproportionate to the offenses they committed. Where the nature of such punishment is by its nature uncertain and unpredictable, the state cannot assure that it will ever be proportionate to the offense. SORA as applied to these Plaintiffs therefore violates the Eighth Amendment.
An Eighth Amendment violation is a remarkable claim, as we seem to be a country where no punishment can be cruel & unusual so long as we do it all the time. Naturally, Colorado authorities appealed Matsch’s ruling to the federal 10th Circuit Court of Appeals.
And, here’s where I write expletives over and over. Kidding. Mostly.
The 10th Circuit Opinion reversed — and it does so largely by simply and uncritically relying on 2003’s Supreme Court decision Smith v. Doe, which has been thoroughly criticized in many places, including other circuits. The Opinion also does not engage at all with Matsch’s thoughtful distinguishing of 10th Circuit precedent, Shaw v. Patton, leading one to wonder whether they even bothered to read the opinion (because they certainly didn’t bother to deal with the points the lower court raised).
The Court reverses on all claims, including the Due Process claims, but the real kicker is that not only does the 10th Circuit find that Colorado’s registry doesn’t violate the 8th Amendment (which is a heavy lift, to be sure), but that it is not punishment at all.
Some quick history: we used to put people in stocks (pictured) as punishment. Stocks were usually located in the town square, or some other heavily traveled area, were folks were locked in uncomfortable contraptions and were exposed and held up to whatever ridicule, humiliation, or general mistreatment a passerby considered acceptable. This was a punishment. This is not hard. You do not have to be very curious or think very long to see the direct analogy between our historical punishments and what the plaintiffs set out in the record in this case.
Anyway, fast forward a couple hundred years and the 10th Circuit indicates that Colorado’s registry something completely and totally different. From the 10th Circuit Opinion:
CSORA does not resemble public shaming. The district court based its finding on the “indignity” that the Appellees suffered from “loud public visits from the police” and “ubiquitous influence of social media.”  But past precedent shows that this does not amount to public shaming. The State here is not putting Appellees on display but is rather disseminating “accurate information about a criminal record,” which the Smith Court found was a “legitimate governmental objective,” and not “punishment.”’
I’ll try to restate to make this clearer: “The State is not putting Appellees on display, but [is doing exactly that thing, actually, on the pretext that these are all people who are dangerous even though we don’t know that and don’t actually care if they are or not].”
To be sure, criminal records are public, but the state also does not generally take everyone’s criminal record and doxx them on a public website with the insinuation that they must be hated and feared. Smith does not compel the conclusion that the Court reaches here, and it wouldn’t if the Court took its constitutional responsibilities seriously (but it doesn’t!)
I will also point out here that, despite noting the ubiquitous influence of social media, they rely on a case that was decided before social media existed. Very cool stuff! The 10th Circuit, unlike other circuits, makes zero attempt to analyze whether the reasoning in Smith, decided in 2003 still makes sense in the year of our lord 2020.
Moreover, the Appellees’ struggles here did not stem from affirmative state action—such as the residency restrictions in Shaw—but instead from third parties and businesses implementing their own procedures.
The Court also indicates it can’t be punishment if the government didn’t expressly authorize it. It is true enough that the government did not mandate any of the specific indignities suffered by the plaintiffs that were in excess of their judicially-sanctioned sentences — things like vigilantism, or evictions, or spouses being threatened with being fired — but then did the government specify what was to be thrown at the people in stocks? If the government invites you to throw a rock at someone it has locked in the stocks, and you do, does that somehow transform it into not punishment? Or is that conclusion hopelessly incoherent, and out of step with our own historical traditions?
I think that people can legitimately have good-faith differences of opinion regarding whether or not registries are effective public safety tools. In other words, do they reduce rates of sexual violence? Are there more effective strategies? Research, of course, demonstrates that they’re not very effective and are enormously costly (in both human, constitutional, and fiscal terms). Scholars much more intelligent than I have argued that they perpetuate sexual violence. Research also shows that they increase recidivism rates — presumably by making it impossible for people to reintegrate. But it is at least a point that is arguable. It’s a testable point.
For a court to conclude that they aren’t punishment is just the height of intellectually dishonest, results-oriented reasoning. It is judicial gaslighting. We should, at least, be honest about what we’re doing here and expect that kind of honesty from our courts.