https://narsol.org/2017/08/federal-judge-holds-colorado-registry-is-punishment-violates-eighth-amendment/

By Robin . . . In a far reaching opinion that is sure to send Colorado’s Attorney General scrambling to salvage that state’s registration and notification scheme, Senior U.S. District Court Judge Richard P. Matsch (a Nixon appointee who presided over the trial of Oklahoma City bombing defendant Timothy McVeigh) has held the entire Colorado Sex Offender Registration Act (C.R.S. §§ 16-22-101, et seq) unconstitutional as applied to three plaintiffs who sued the director of Colorado’s Bureau of Investigation (the state agency responsible for maintaining the state’s sex offender registry).

Using the seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) that were utilized by the Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), Judge Matsch held that six of the seven factors weighed in favor of finding the state’s SORA requirements punitive in their effects and, therefore, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Judge Matsch writes:

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.

Believing that the U.S. Supreme Court’s collective understanding of the internet has evolved over time, Judge Matsch wrote, “Justice Kennedy’s words [writing the 2003 majority opinion in Smith v. Doe] ring hollow that the state’s website does not provide the public with means to shame the offender when considering the evidence in this case. He and his colleagues did not foresee the development of private, commercial websites exploiting the information made available to them . . . The justices did not foresee the ubiquitous influence of social media . . . Public shaming and banishment are forms of punishment that may be considered cruel and unusual under the Eighth Amendment.”

Judge Matsch also held the state’s SORA requirements unconstitutionally infirm in violating the Fourteenth Amendment procedural and substantive due process rights of the plaintiffs, as applied.

Since the plaintiffs did not argue that the state’s SORA requirements are facially invalid, the outcome of this case (which is certain to be appealed to the Tenth Circuit) will only apply to the parties named in the complaint. However, the precedential effect of Judge Matsch’s ruling, IF sustained on review, will open a floodgate of litigation that would very likely cause the Colorado Sex Offender Registration Act to buckle and collapse—at least in its present construction.

Of particular interest was the obvious influence of the Supreme Court’s recent opinion in Packingham v. North Carolina, _ U.S. _, 137 S.Ct. 1730 (2017) as well as the Sixth Circuit’s decision in Does v. Snyder, 834 F.3d 696 (6th Cir. 2016) which remains on petition before the Supreme Court and is scheduled for conference September 25.

In light of Justice Kennedy’s opinion in the unanimous Packingham decision, Judge Matsch infers that Kennedy’s majority opinion in Smith v. Doe might read much differently were he to have another crack at it:

Packingham also reflects an apparent evolution in the mindset of Justice Kennedy, who authored the majority opinions in both Smith v. Doe and Packingham. In Smith, decided in 2003, Justice Kennedy downplayed the punitive effect of statutory internet notification provisions, finding their “purpose and the principal effect” were “to inform the public for its own safety, not to humiliate the offender”; and that the internet simply makes a public records search “more efficient, cost effective, and convenient” for citizens. Smith, 538 U.S. at 99. In 2017, in addition to noting that restrictions on internet use are a “severe restriction,” Justice Kennedy recognized that the internet and social media websites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. Packingham, 137 S.Ct. At 1737.

This outcome is breathtaking in its scope because it may well be the first time a federal judge has ever held that the essential requirement to register is, in and of itself, an unconstitutional imposition of state law on the basis of the punitive consequential effects to citizens required to register.

NARSOL filed its own amicus brief in the Packingham case which was joined by North Carolina RSOL and ATSA.