In Millard v. Rankin, an as-applied challenge, Colorado Senior District Judge Richard Matsch rejected the pretty ribbons the legislature wrapped around the Sex Offender Registry Act. Applying the “intents-effects” test to the law, the court held that it was unconstitutional under the Eighth Amendment.
In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court employed an “intent-effects” analytical framework to determine whether Alaska’s sex offender registration statute was punitive. The Court stated that it would first consider whether the legislative intent was to impose punishment; if so, “that ends the inquiry.” Id. at 92. If the intent was to enact a statutory scheme that is civil and non-punitive, however, the Court stated that it must further examine whether the statutory scheme is so punitive in purpose or effect as to negate the legislative intention to deem it “civil.” Id. In making the “effects” analysis, the Court considered five of the seven factors employed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):
The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme:  has been regarded in our history and traditions as a punishment;  imposes an affirmative disability or restraint;  promotes the traditional aims of punishment;  has a rational connection to a nonpunitive purpose; or  is excessive with respect to this purpose.
Smith v. Doe, 538 U.S. at 97. The two additional factors considered in Kennedy were  whether the statute’s requirements come into play only on a finding of scienter; and  whether the behavior to which it applies is already a crime.
While the legislature in Colorado and elsewhere has characterized SORA as civil and non-punitive, allowing it to wiggle past the “intent” prong of the test, Judge Matsch reached the painfully obvious conclusion that others have worked so hard to avoid.
Applying the analysis called for by the Supreme Court, this Court first concludes that the
intent of SORA is non-punitive. Plaintiffs do not dispute the legislative statements of intent in C.R.S. §§ 16-22-110(6) and 16-22-112(1).8.
Whether plaintiffs were right to concede that putting the word “civil” to SORA was sufficient to overcome the “intent” prong is somewhat dubious. Without doing so, SORA would facially violate the Constitution, as imposing secondary punishment in violation of double jeopardy and, given the post-hoc changes in requirements, ex post facto, at minimum. Is it enough to use the word “civil” and cobble together a lame excuse? Evidently. But that wasn’t the end of the analysis.
Weighing the factors considered in Smith v. Doe leads to the conclusion that SORA’s effects on these Plaintiffs are plainly punitive, negating the legislative intent. (Emphasis added.)
In Smith v. Doe, addressing Alaska’s act, Justice Anthony Kennedy weaved his way through reality with some nifty judicial gymnastics to avoid facing the destructive and punitive impact SORA imposed on its victims.
… These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.
The State’s Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety’s Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska’s citizenry.
Justice Kennedy trivializes the punitive impact by calling “humiliation” a “collateral consequence of a valid regulation,” buying the lie on both sides of the equation, that it’s a public safety law and that it’s just tough nuggies that sex offenders’ lives, not to mention their families, are rendered unlivable. It’s almost as if he never used the internet, just a ” more efficient, cost effective, and convenient” way to know who to shun.
Judge Matsch, who apparently has a passing familiarity with Google and disinclination to ignore reality, rejects this fantasy grasp of SORA’s impact.
Justice Kennedy’s words 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 and the opportunities for “investigative journalism” as that done by a Denver television station adversely affecting Eugene Knight. The justices did not foresee the ubiquitous influence of social media.
But despite the plaintiff’s concession that the Colorado SORA survived the “intent” test, Judge Matsch squares up to that reality as well.
The Colorado General Assembly’s disavowal of any punitive intent is an avoidance of
any responsibility for the results of warning the public of the dangers to be expected from
registered sex offenders. The register 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?
This is brutal legal realism, a refusal to fawn over the pretty ribbon the legislature and Supreme Court have tied around SORA to rationalize away the fact that it can’t possibly be other than punitive. As Judge Matsch notes, there is no possible reaction to the registry other than to shun those on it, and, as he goes further to note, those who are related to, or house, or help, those on it.
The lie that the mere existence of the registry somehow protects the public without punitive consequence has been accepted by too many judges who turned cartwheels to diminish its obvious and inherent impacts. The acceptance of the premise that legislatures were unaware of, and thus didn’t intend, for this impact is at best blind, and at worst utterly disingenuous.
SORA has been a sham since its inception, a flagrantly unconstitutional concept designed to create the “walking banishment” of a segment of the population, some of whom engaged in despicable crimes, and others who are no threat to anyone. While the plaintiffs in this case, together with those who suffer alongside them, have certainly been denied their constitutional rights as applied, the harms found by Judge Matsch are pervasive and inherent in SORA. It appears that judges are finally coming to grips with its outrageous and unwarranted price, and finding it too high to pay.