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Femedeer v. Department of Corrections (1999)

28 August 2000 Published in Resolved Cases

Ex Post Facto, Due Process, Prison/Jails, Criminal Justice - On August 29, 2000, the 10th Circuit Court of Appeals dealt a crushing blow to due process and ex post facto rights for those convicted of sexual offenses in Utah. The ruling resulted from a 1998 state law requiring the Department of Corrections (DOC) to make public its registry of persons convicted of certain sex offenses. Unlike public notification laws in other states, Utah’s law did not require any sort of assessment to determine individuals’ risks of re-offending before publicizing their names and addresses.

In addition, the DOC decided to satisfy its statutory obligations by posting the sex offender registry on its official website, thus making the information available not only to those who demonstrated a need to know it, but to anyone, anywhere, and for any purpose.

Femedeer (a pseudonym) was convicted of an offense covered by the law, but successfully completed the terms of his sentence and registered as a sex offender before the effective date of the new law. In September 1998, the ACLU of Utah and civil rights attorney Brian Barnard filed a federal lawsuit on his behalf in which we claimed that publishing registry information via the Internet without regard to the risk posed by individual offenders constitutes ex post facto punishment and deprives offenders of their constitutional rights without due process of law. In court papers, both Femedeer and a noted expert in the field testified of the devastating impact that the widespread publication of conviction can have on offenders' efforts to repair their lives and relationships.

In a ruling issued in January 1999, U.S. District Judge Dale Kimball agreed with our ex post facto argument and ordered that the DOC identify and implement procedural safeguards to ensure compliance with constitutional requirements. The state appealed Judge Kimball’s decision, and twenty months later, the 10th Circuit reversed his ruling. In its opinion, the court took issue with Judge Kimball’s assertion that posting information on the Internet constitutes punishment, stating, “Internet notification works merely a technological extension, not a sea change, in our nation’s long history of making information public regarding criminal offenses.” Utah’s sex offender registry is now one of the broadest in the country, and more than 4,500 people will be listed on the DOC’s website. One can only hope that this will not lead, as it has in other states, to instances of vigilantism against those convicted of sexual offenses or against people erroneously identified as sex offenders because of incorrect information on the website.