FAC Weekly Update 2025-07-15-FL and CO in the News

Dear Members and Advocates,

This week, a story out of Colorado shines a spotlight on a growing issue that should concern every person subject to registration—and everyone who believes in fair laws and due process. According to Fox News, a 33-year-old registered individual with a long history of serious mental illness, was arrested for allegedly attempting to kidnap a young boy outside an elementary school. But now prosecutors have dropped the charges—not because he was found innocent, but because he was declared mentally incompetent to stand trial. This wasn’t the first time either. He’s been found incompetent repeatedly over the last decade.

Let’s be clear: this is an extreme example and this man isn’t getting a free pass. He’s being civilly committed to a mental facility – as he probably should be. But there’s an important distinction here… that was a crime… but what happens when the offense is not an actual crime, but a technical violation of registration laws. In that case, there’s no safety valve. So here’s the question: How can people suffering from severe mental illness or dementia possibly be expected to comply with the dozens of complex, ever-changing sex offender registration requirements?

Unlike most crimes, where prosecutors must prove a person had the intent to commit a criminal act, registration violations are strict liability offenses. That means you can forget to update something or misremember a reporting date due to confusion or mental deterioration and still wind up in prison. No intent. No understanding. Doesn’t matter. You’re facing years behind bars. You can be totally incapacitated, wandering through psychosis or cognitive decline, and the law will still punish you as if you deliberately tried to deceive the state. As the law currently stands, there’s no safeguard for those who literally don’t know what day it is, let alone their next reporting date.

We all want safe communities. But this system isn’t just cruel—it’s counterproductive. Locking up people who lack the capacity to comply with registration doesn’t protect anyone. It wastes resources, undermines trust in the law, and endangers some of the most vulnerable people on the registry. With lifetime registration in Florida, all of us are aging.  Many of us will eventually experience alzheimers, dementia or even forgetfulness attributed to old age. The response for those who are mentally impaired shouldn’t be a felony charge—it should be a care plan. But that’s not how it works in Florida. In Florida, we are expected to follow a maze of rules regardless of one’s ability to even understand them.

FAC is working on protections for the mentally ill, distinctions between willful evasion and incapacity, and a serious reexamination of whether it’s just—or constitutional—to criminalize people for failing to do something they are incapable of doing. We are proposing a bill to account for mental deterioration in registration and we need your help. If you, or someone you know, is in this situation. We are asking you to contact [email protected] today! We need your stories and situations to support our efforts and to help.

In other news, we have a very positive update to share. Last week, the 11^th Circuit Court of Appeals (the appellate court that covers Florida District Courts) issued an opinion in Clements v. Secretary, Department of Corrections that can have a very significant impact on all of us. Clements, who committed a sexual offense in 2008, filed a Habeas Corpus challenge. A habeas (or petition for a writ of habeas corpus) is a legal action through which someone who is being detained or imprisoned asks a court to determine whether their detention is lawful. The thing is; Clements was no longer in prison or on probation. His period of probation ended in 2013. But Clements argued that his registration status constituted “confinement”. There was some legal back and forth which we won’t confuse you with, but ultimately the 11^th Circuit found that Florida’s sex offender residency restrictions could potentially contribute to Clements being considered “in custody” for legal purposes. Since these restrictions may limit his liberty, the district court was wrong to dismiss his petition without considering this argument or allowing both sides to fully address the issue!

This could be a very significant case! For decades, courts (starting with Smith v. Doe, 538 U.S. 84 (2003)) have upheld sex offender registration laws by labeling them “civil” and “nonpunitive”—meaning they’re meant to protect the public, not punish the registrant. This has had massive consequences. It has allowed courts to deny constitutional protections that apply in criminal cases (e.g., ex post facto, double jeopardy, etc.) and individuals have very limited legal grounds to challenge registry laws. But if a court finds that registry-related residency restrictions impose such severe liberty constraints that they constitute “custody,” it cracks the foundation of that “not punishment” argument.

So if residency restrictions are tacked on to registration (which they are here in Florida),  and those restrictions confine someone to a narrow geographic area, prevent them from living with family, force homelessness or housing instability and impose severe, long-term burdens, and that’s deemed enough to count as “custody,” then it’s legally acknowledging that registration is more than just applying paperwork, it’s a form of state control over your life. In short, the Clements ruling is important because it chips away at the legal fiction that sex offender registration is “not punishment”—a fiction that has allowed the system to expand unchecked.

Sincerely,

The Florida Action Committee