The law governing Colorado’s sex offender registry is not cruel and unusual punishment, the U.S. Court of Appeals for the 10th Circuit ruled on Thursday, because the registry was not meant to be a punishment.

“We therefore conclude that the Colorado legislature’s intent behind the registration requirements was civil, and not punitive,” wrote Judge Allison H. Eid for the three-member panel. The decision reversed a 2017 lower court ruling that found the law violated constitutional guarantees.

David Millard, Eugene Knight and Arturo Vega were men who committed sex offenses and registered with the state. They argued that their status as registrants in a public database subjected them to harassment, shunning, and “actual and potential physical and mental abuse.” This, they contended was an “additional punishment” beyond their sentences.

Eid countered that the registry “does not amount to public shaming,” and that any shame or humiliation that people who learn of their offense inflict upon them are a “collateral consequence.”

Mark Silverstein, legal director of the ACLU of Colorado, was involved with the appeal. He called the court’s disavowal of injurious conduct toward registrants “a willful blindness. It enables and facilitates this private vigilantism.”

In the early 1990s, more states started to institute sex offender registries following high-profile crimes involving children. Congress soon passed the Wetterling Act requiring registries of all states, as well as annual verification of offenders’ addresses. By 1996, every state had complied.

Colorado, which had a registry since 1991, passed the Sex Offender Registration Act in 2002, which allowed for limited public disclosure from the registry so that communities could “adequately protect themselves and their children.”

The Colorado Bureau of Investigation maintains a searchable database of registrants that displays their names, addresses, birth dates, photographs and their offense. The disclosure requirement does not apply to people convicted of misdemeanors or as juveniles. Some offenders must register for their entire lives, while others can petition a court to de-register.

The plaintiffs sued the CBI under federal civil rights law, alleging the registration requirement amounted to cruel and unusual punishment in violation of the Eighth Amendment. Then-U.S. District Judge Richard Matsch agreed with them, finding the registry subjected them to punishment that was, in their words, “inflicted not by the state but by their fellow citizens.” 

Despite the General Assembly’s non-punitive intent for the registration law, the plaintiffs’ “individual experience is that they are in effect being punished in ways that are disproportionate to the criminal conduct that occurred years ago, without regard to how their lives have changed over that time and without regard to whether they remain a danger to public safety,” Matsch wrote.

Millard had difficulty finding housing because of his status, filing hundreds of applications and being forced to move after a TV news story on sex offenders. Vega and Knight said they were challenged in finding employment, and Knight could not enter his children’s school.

Cynthia Coffman, Colorado’s attorney general at the time, argued in her office’s appellate brief that Colorado’s sex offender law was less restrictive than that of other states, and that “negative experiences involved private or local officials over whom CBI has no authority.”

All five attorneys general of the other states within the 10th Circuit supported Colorado’s appeal, contending that sex offenders as a group were more likely than non-offenders to commit future crimes, and that states “have come to a consensus that the best, most cost-effective, and least intrusive way to minimize the risk” is to disseminate information about offenders.

According to the U.S. Department of Justice, sex offenders on average recommit a sex crime at a rate of between 11% and 19%, depending on their treatment status. For all crimes, the recidivism rate is 32% for offenders who have not received treatment and 48% for those who have.

However, a group of 17 scholars from across the country asked the 10th Circuit to rule in favor of the plaintiffs, worrying about the public’s “fear that only harsh registration rules can prevent great harms” and a sentiment that there can be no punishment too harsh for sex offenders. They pointed to much lower recidivism statistics and agreed it was inadvisable to impose a long-lasting, blanket requirement on the entire group, given that a majority does not ever reoffend.

“Because Colorado places and retains people on its registry on the basis of a single offense, without any consideration of the reoffense risk the individual registrant actually poses, it creates a large haystack in which a few dangerous needles can hide,” wrote the academics from the University of Michigan, University of Nebraska, and University of California-Berkeley, among other institutions. “That alone makes it a poor tool for guiding the public in how to protect themselves from harm.”

Eid, in the appellate panel’s opinion, laid out the multiple factors that comprise a punishment — something that imposes a restraint, resembles traditional punishment or promotes the goals of punishment. On those measures, the court found Colorado’s sex offender registration law did not constitute public shaming or probation, nor did it find the registration requirements restrained the offenders.

“It is true that Millard’s employer moved him to a different work location and that Home Depot declined to hire Knight because of his background,” she wrote. “But we find these effects to be less harsh than a lifelong bar on work in a particular industry.”

A majority of the U.S. Supreme Court in a 2003 decision upheld Alaska’s sex offender registry, also on the basis that it was non-punitive in nature. In that case, as in Colorado’s, the court rejected the proposition that the reporting requirement constitutes retribution because it correlates to a person’s offense, rather than their personal risk of reoffending.

The circuit panel also rejected the plaintiffs’ argument that the registry violated their due process rights, citing again the public safety interest in enacting registration requirements.

Silverstein, the ACLU attorney, described the court’s legal finding that the registry was not punishment as “out of step with public perceptions, a.k.a. common sense.” He acknowledged it would have been difficult to uphold the lower court ruling given precedent, however.

“Everyone, everyone except the court, knows that this is extra punishment imposed on people who have already served their time,” he said. Silverstein added that public records could reveal personal information about a non-sexual crime someone committed in the past, but “if someone is convicted of one of these ‘scarlet letter’ crimes, the information is updated” annually or sooner.

The state attorney general’s office did not respond to a request for comment on the ruling. Oklahoma Attorney General Mike Hunter, who joined the brief in support of Colorado, said on Thursday that to deny public disclosure of offenders’ information “in order to make individuals convicted of these crimes feel more comfortable is utterly irresponsible. Anyone advocating for this position should talk to victims and survivors of these types of crimes, who will forever remain scarred by these horrific acts, to find out why the registry systems are important.”

The case is Millard et al. v. Camper.