OCTOBER TERM, 2002
Syllabus
SMITH ET AL.
v. DOE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 01-729. Argued November 13, 2002-Decided March 5, 2003
Under the Alaska Sex Offender Registration Act (Act), any sex
offender or child kidnaper incarcerated in the State must register
with the Department of Corrections within 30 days before his
release, providing his name, address, and other specified
information. If the individual is at liberty, he must register with
local law enforcement authorities within a working day of his
conviction or of entering the State. If he was convicted of a
single, nonaggravated sex crime, the offender must provide annual
verification of the submitted information for 15 years. If he was
convicted of an aggravated sex offense or of two or more sex
offenses, he must register for life and verify the information
quarterly. The offender's information is forwarded to the
Department of Public Safety, which maintains a central registry of
sex offenders. Some of the data, such as fingerprints, driver's
license number, anticipated change of address, and whether the
offender has had medical treatment afterwards, are kept
confidential. The offender's name, aliases, address, photograph,
physical description, description, license and identification
numbers of motor vehicles, place of employment, date of birth,
crime, date and place of conviction, length and conditions of
sentence, and a statement as to whether the offender is in
compliance with the Act's update requirements or cannot be located
are, however, published on the Internet. Both the Act's
registration and notification requirements are retroactive.
Respondents were convicted of aggravated sex offenses. Both were
released from prison and completed rehabilitative programs for sex
offenders. Although convicted before the Act's passage, respondents
are covered by it. After the initial registration, they are
required to submit quarterly verifications and notify the
authorities of any changes. Both respondents, along with the wife
of one of them, also a respondent here, brought this action under
42 U. S. C. § 1983, seeking to declare the Act void as to them
under,
inter alia, the
Ex Post Facto Clause, U. S.
Const., Art. I, § 10, cl. 1. The District Court granted petitioners
summary judgment. The Ninth Circuit disagreed in relevant part,
holding that, because its effects were punitive, the Act violates
the
Ex Post Facto Clause.
85
Held: Because the Alaska Sex Offender Registration Act is
nonpunitive, its retroactive application does not violate the
Ex
Post Facto Clause. Pp.92-106.
(a) The determinative question is whether the legislature meant
to establish "civil proceedings."
Kansas v.
Hendricks, 521
U. S. 346,361. If the intention was to impose punishment, that
ends the inquiry. If, however, the intention was to enact a
regulatory scheme that is civil and nonpunitive, the Court must
further examine whether the statutory scheme is so punitive either
in purpose or effect as to negate the State's intention to deem it
civil.
E. g., ibid. Because the Court ordinarily defers to
the legislature's stated intent,
ibid., only the clearest
proof will suffice to override that intent and transform what has
been denominated a civil remedy into a criminal penalty. See,
e.
g., ibid. P.92.
(b) The Alaska Legislature's intent was to create a civil,
nonpunitive regime. The Court first considers the statute's text
and structure,
Flemming v.
Nestor, 363 U. S. 603, 617,
asking whether the legislature indicated either expressly or
impliedly a preference for one label or the other,
Hudson v.
United States, 522 U. S. 93, 99. Here,
the statutory text states the legislature's finding that sex
offenders pose a high risk of reoffending, identifies protecting
the public from sex offenders as the law's primary interest, and
declares that release of certain information about sex offenders to
public agencies and the public will assist in protecting the public
safety. This Court has already determined that an imposition of
restrictive measures on sex offenders adjudged to be dangerous is a
legitimate nonpunitive governmental objective.
Hendricks,
521 U. S., at 363. Here, as in
Hendricks, nothing on the
statute's face suggests that the legislature sought to create
anything other than a civil scheme designed to protect the public
from harm.
Id., at 361. The contrary conclusion is not
required by the Alaska Constitution's inclusion of the need to
protect the public as one of the purposes of criminal
administration. Where a legislative restriction is an incident of
the State's power to protect the public health and safety, it will
be considered as evidencing an intent to exercise that regulatory
power, and not a purpose to add to the punishment.
E. g.,
Flemming v.
Nestor, supra, at 616. Other formal
attributes of a legislative enactment, such as the manner of its
codification or the enforcement procedures it establishes, are
probative of the legislature's intent, see,
e. g.,
Hendricks, 521 U. S., at 361, but are open to debate in this
case. The Act's notification provisions are codified in the State's
Health, Safety, and Housing Code, confirming the conclusion that
the statute was intended as a nonpunitive regulatory measure. Cf.
ibid. The fact that the Act's registration provisions are
codified in the State's Code of Criminal Procedure is not
86
Syllabus
dispositive, since a statute's location and labels do not by
themselves transform a civil remedy into a criminal one. See
United States v.
One Assortment of 89
Firearms, 465
U. S. 354, 364-365, and n. 6. The Code of Criminal Procedure
contains many other provisions that do not involve criminal
punishment. The Court's conclusion is not altered by the fact that
the Act's implementing procedural mechanisms require the trial
court to inform the defendant of the Act's requirements and, if
possible, the period of registration required. That conclusion is
strengthened by the fact that, aside from the duty to register, the
statute itself mandates no procedures. Instead, it vests the
authority to promulgate implementing regulations with the
Department of Public Safety, an agency charged with enforcing both
criminal
and civil regulatory laws. Also telling is the fact
that the Act does not require the procedures adopted to contain any
safeguards associated with the criminal process. By contemplating
distinctly civil procedures, the legislature indicated clearly that
it intended a civil, not a criminal, sanction.
United States
v.
Ursery, 518
U. S. 267, 289. Pp. 92-96.
(c) Respondents cannot show, much less by the clearest proof,
that the Act's effects negate Alaska's intention to establish a
civil regulatory scheme. In analyzing the effects, the Court refers
to the seven factors noted in
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 168-169,
as a useful framework. First, the regulatory scheme, in its
necessary operation, has not been regarded in the Nation's history
and traditions as a punishment. The fact that sex offender
registration and notification statutes are of fairly recent origin
suggests that the Act was not meant as a punitive measure, or, at
least, that it did not involve a traditional means of punishing.
Respondents' argument that the Act, particularly its notification
provisions, resembles shaming punishments of the colonial period is
unpersuasive. In contrast to those punishments, the Act's stigma
results not from public display for ridicule and shaming but from
the dissemination of accurate information about a criminal record,
most of which is already public. The fact that Alaska posts
offender information on the Internet does not alter this
conclusion. Second, the Act does not subject respondents to an
affirmative disability or restraint. It imposes no physical
restraint, and so does not resemble imprisonment, the paradigmatic
affirmative disability or restraint.
Hudson, 522 U. S., at
104. Moreover, its obligations are less harsh than the sanctions of
occupational debarment, which the Court has held to be nonpunitive.
See,
e. g., ibid. Contrary to the Ninth
Circuit's assertion, the record contains no evidence that the Act
has led to substantial occupational or housing disadvantages for
former sex offenders that would not have otherwise occurred. Also
unavailing is that court's assertion that the periodic update
requirement imposed an affirmative disability. The
87
Act, on its face, does not require these updates to be made in
person. The holding that the registration system is parallel to
probation or supervised release is rejected because, in contrast to
probationers and supervised releasees, offenders subject to the Act
are free to move where they wish and to live and work as other
citizens, with no supervision. While registrants must inform the
authorities after they change their facial features, borrow a car,
or seek psychiatric treatment, they are not required to seek
permission to do so. Third, the Act does not promote the
traditional aims of punishment. That it might deter future crimes
is not dispositive. See,
e. g., id., at 105.
Moreover, the Ninth Circuit erred in concluding that the Act's
registration obligations were retributive. While the Act does
differentiate between individuals convicted of aggravated or
multiple offenses and those convicted of a single nonaggravated
offense, these broad categories and the reporting requirement's
corresponding length are reasonably related to the danger of
recidivism, and this is consistent with the regulatory objective.
Fourth, the Act has a rational connection to a legitimate
nonpunitive purpose, public safety, which is advanced by alerting
the public to the risk of sex offenders in their community. That
the Act may not be narrowly drawn to accomplish the stated purpose
is not dispositive, since such imprecision does not suggest that
the Act's nonpunitive purpose is a "sham or mere pretext."
Hendricks, supra, at 371 (KENNEDY, J., concurring). Fifth,
the regulatory scheme is not excessive with respect to the Act's
purpose. The State's determination to legislate with respect to
convicted sex offenders as a class, rather than require individual
determination of their dangerousness, does not render the Act
punitive. See,
e. g., Hawker v.
New York, 170 U. S. 189, 197.
Hendricks, supra, at 357-368, 364, distinguished. Moreover,
the wide dissemination of offender information does not render the
Act excessive, given the general mobility of the population. The
question here is not whether the legislature has made the best
choice possible to address the problem it seeks to remedy, but
whether the regulatory means chosen are reasonable in light of the
nonpunitive objective. The Act meets this standard. Finally, the
two remaining
Mendoza-Martinez factorswhether the regulation
comes into play only on a finding of scienter and whether the
behavior to which it applies is already a crime-are of little
weight in this case. Pp.97-106.
259 F.3d
979, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined.
THOMAS, J., filed a concurring opinion,
post, p. 106.
SOUTER, J., filed an opinion concurring in the judgment,
post, p. 107. STEVENS, J., filed a dissenting opinion,
post,
88
Syllabus
p. 110. GINSBURG, J., filed a dissenting opinion, in which
BREYER, J., joined,
post, p. 114.
John G.
Roberts, Jr., argued the cause for
petitioners.
With him on the briefs were Jonathan S. Franklin, Catherine E.
Stetson, Cynthia M. Cooper, and Bruce M. Botelho, Attorney General
of Alaska.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General McCallum, Deputy Solicitor General
Dreeben, Patricia A. Millett, Leonard Schaitman, Mark W Pennak, and
Wendy M. Keats.
Darryl L. Thompson argued the cause for respondents.
With him on the brief was
Verne E. Rupright.*
*Briefs of
amici curiae urging reversal were filed for
the State of California
ex rel. Bill Lockyer by
Mr.
Lockyer, Attorney General of California,
Robert R.
Anderson, Chief Assistant Attorney General,
Jo Graves,
Senior Assistant Attorney General,
Stan Cross, Supervising
Deputy Attorney General,
Janet E. Neeley, Deputy Attorney
General,
Ken Salazar, Attorney General of Colorado,
Alan
Gilbert, Solicitor General,
Donald S.
Quick,
Deputy Attorney General,
Matthew S.
Holman, Assistant
Attorney General, and
Robert R. Rigsby, Corporation Counsel
of the District of Columbia, and by the Attorneys General for their
respective jurisdictions as follows:
Bill Pryor of Alabama,
Janet Napolitano of Arizona,
Richard Blumenthal of
Connecticut,
M. Jane Brady of Delaware,
Robert A.
Butterworth of Florida,
Thurbert E. Baker of Georgia,
Earl I. Anzai of Hawaii,
James E. Ryan of Illinois,
Steve Carter of Indiana,
Carla J.
Stovall of Kansas,
Albert B. Chandler III of
Kentucky,
Richard P. Ieyoub of Louisiana,
J.
Joseph Curran, Jr., of Maryland,
Thomas F.
Reilly of Massachusetts,
Mike Moore of Mississippi,
Jeremiah W (Jay) Nixon of Missouri,
Mike McGrath of
Montana,
Don Stenberg of Nebraska,
Frankie Sue Del
Papa of Nevada,
Philip T. McLaughlin of New Hampshire,
David Samson of New Jersey,
Patricia A. Madrid of New
Mexico,
Eliot Spitzer of New York,
Wayne Stenehjem of
North Dakota,
Betty D. Montgomery of Ohio,
W A. Drew
Edmondson of Oklahoma,
Hardy Myers of Oregon,
D.
Michael Fisher of Pennsylvania,
Anabelle Rodriguez of
Puerto Rico,
Charles M. Condon of South Carolina,
Mark
Barnett of South Dakota,
Paul G.
Summers of
Tennessee,
John Cornyn of Texas,
Mark L. Shurtleff of
Utah,
William H. Sorrell of Vermont,
Iver A.
Stridiron of the Virgin Islands,
Christine O.
Gregoire of Washington,
Darrell V. McGraw, Jr.,
of
89
JUSTICE KENNEDY delivered the opinion of the Court. The Alaska
Sex Offender Registration Act requires convicted sex offenders to
register with law enforcement authorities, and much of the
information is made public. We must decide whether the registration
requirement is a retroactive punishment prohibited by the
Ex
Post Facto Clause.
I A
The State of Alaska enacted the Alaska Sex Offender Registration
Act (Act) on May 12, 1994. 1994 Alaska Sess. Laws ch. 41. Like its
counterparts in other States, the Act is termed a "Megan's Law."
Megan Kanka was a 7-year-old New Jersey girl who was sexually
assaulted and murdered in 1994 by a neighbor who, unknown to the
victim's family, had prior convictions for sex offenses against
children. The crime gave impetus to laws for mandatory registration
of sex offenders and corresponding community notification. In 1994,
Congress passed the Jacob Wetterling Crimes Against Children and
Sexually Violent Offender Registration Act, title 17, 108 Stat.
2038, as amended, 42 U. S. C. § 14071, which conditions certain
federal law enforcement funding on the States' adoption of sex
offender registration laws and sets
West Virginia, and
James E. Doyle of Wisconsin; and for
the Council of State Governments et al. by
Richard Ruda and
James I. Crowley.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Lawrence S.
Lustberg, Steven R. Shapiro, and
Joshua L. Dratel;
for Citizens for Penal Reform, Inc., by
W Andrew McCullough;
for the Electronic Privacy Information Center by
Marc
Rotenberg; for the Massachusetts Committee for Public Counsel
Services by
Carol A. Donovan; for the Office of the Public
Defender for the State of New Jersey et al. by
Peter A. Garcia,
Michael Z. Buncher, Brian J. Neff, Richard S.
Lehrich, and
Edward Barocas; and for the Public
Defender Service for the District of Columbia by
James W Klein,
Samia A. Fam, and
Corinne A. Beckwith.
Lucy A. Dalglish and
Gregg P. Leslie filed a brief
for the Reporters Committee for Freedom of the Press as
amicus
curiae.
90
mInImUm standards for state programs. By 1996, every State, the
District of Columbia, and the Federal Government had enacted some
variation of Megan's Law.
The Alaska law, which is our concern in this case, contains two
components: a registration requirement and a notification system.
Both are retroactive. 1994 Alaska Sess. Laws ch. 41, § 12(a). The
Act requires any "sex offender or child kidnapper who is physically
present in the state" to register, either with the Department of
Corrections (if the individual is incarcerated) or with the local
law enforcement authorities (if the individual is at liberty).
Alaska Stat. §§ 12.63.010(a), (b) (2000). Prompt registration is
mandated. If still in prison, a covered sex offender must register
within 30 days before release; otherwise he must do so within a
working day of his conviction or of entering the State. §
12.63.010(a). The sex offender must provide his name, aliases,
identifying features, address, place of employment, date of birth,
conviction information, driver's license number, information about
vehicles to which he has access, and postconviction treatment
history. § 12.63.010(b)(1). He must permit the authorities to
photograph and fingerprint him. § 12.63.010(b)(2).
If the offender was convicted of a single, nonaggravated sex
crime, he must provide annual verification of the submitted
information for 15 years. §§ 12.63.010(d)(1), 12.63.020(a)(2). If
he was convicted of an aggravated sex offense or of two or more sex
offenses, he must register for life and verify the information
quarterly. §§ 12.63.010(d)(2), 12.63.020(a)(1). The offender must
notify his local police department if he moves. § 12.63.010(c). A
sex offender who knowingly fails to comply with the Act is subject
to criminal prosecution. §§ 11.56.835, 11.56.840.
The information is forwarded to the Alaska Department of Public
Safety, which maintains a central registry of sex offenders. §
18.65.087(a). Some of the data, such as fingerprints, driver's
license number, anticipated change of address, and whether the
offender has had medical treat-
91
ment afterwards, are kept confidential. §§ 12.63.010(b),
18.65.087(b). The following information is made available to the
public: "the sex offender's or child kidnapper's name, aliases,
address, photograph, physical description, description[,] license
[and] identification numbers of motor vehicles, place of
employment, date of birth, crime for which convicted, date of
conviction, place and court of conviction, length and conditions of
sentence, and a statement as to whether the offender or kidnapper
is in compliance with [the update] requirements ... or cannot be
located." § 18.65.087(b). The Act does not specify the means by
which the registry information must be made public. Alaska has
chosen to make most of the nonconfidential information available on
the Internet.
B
Respondents John Doe I and John Doe II were convicted of sexual
abuse of a minor, an aggravated sex offense. John Doe I pleaded
nolo contendere after a court determination that he had
sexually abused his daughter for two years, when she was between
the ages of 9 and 11; John Doe II entered a
nolo contendere
plea to sexual abuse of a 14-year-old child. Both were released
from prison in 1990 and completed rehabilitative programs for sex
offenders. Although convicted before the passage of the Act,
respondents are covered by it. After the initial registration, they
are required to submit quarterly verifications and notify the
authorities of any changes. Both respondents, along with respondent
Jane Doe, wife of John Doe I, brought an action under Rev. Stat. §
1979, 42 U. S. C. § 1983, seeking to declare the Act void as to
them under the
Ex Post Facto Clause of Article I, § 10, cl.
1, of the Constitution and the Due Process Clause of § 1 of the
Fourteenth Amendment. The United States District Court for the
District of Alaska granted summary judgment for petitioners. In
agreement with the District Court, the Court of Appeals for the
Ninth Circuit determined the state legislature had intended the Act
to be a nonpunitive, civil
92
regulatory scheme; but, in disagreement with the District Court,
it held the effects of the Act were punitive despite the
legislature's intent. In consequence, it held the Act violates the
Ex Post Facto Clause.
Doe I v.
Otte, 259 F.3d
979 (2001). We granted certiorari. 534 U. S. 1126 (2002).
II
This is the first time we have considered a claim that a sex
offender registration and notification law constitutes retroactive
punishment forbidden by the
Ex Post Facto Clause. The
framework for our inquiry, however, is well established. We must
"ascertain whether the legislature meant the statute to establish
'civil' proceedings."
Kansas v.
Hendricks, 521 U. S. 346, 361
(1997). If the intention of the legislature was to impose
punishment, that ends the inquiry. If, however, the intention was
to enact a regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is "'so punitive
either in purpose or effect as to negate [the State's] intention'
to deem it 'civil.'"
Ibid. (quoting
United States v.
Ward, 448 U.
S. 242, 248-249 (1980)). Because we "ordinarily defer to the
legislature's stated intent,"
Hendricks, supra, at 361,
"'only the clearest proof' will suffice to override legislative
intent and transform what has been denominated a civil remedy into
a criminal penalty,"
Hudson v.
United States,
522 U. S. 93, 100
(1997) (quoting
Ward, supra, at 249); see also
Hendricks,
supra, at
361; United States v.
Ursery, 518 U. S. 267, 290
(1996);
United States v.
One Assortment of 89
Firearms, 465
U. S. 354, 365 (1984).
A
Whether a statutory scheme is civil or criminal "is first of all
a question of statutory construction."
Hendricks, supra, at
361 (internal quotation marks omitted); see also
Hudson,
supra, at 99. We consider the statute's text and its structure
to determine the legislative objective.
Flemming v.
Nestor, 363 U.
S. 603, 617 (1960). A conclusion that the leg-
93
islature intended to punish would satisfy an
ex post
facto challenge without further inquiry into its effects, so
considerable deference must be accorded to the intent as the
legislature has stated it.
The courts "must first ask whether the legislature, in
establishing the penalizing mechanism, indicated either expressly
or impliedly a preference for one label or the other."
Hudson,
supra, at 99 (internal quotation marks omitted). Here, the
Alaska Legislature expressed the objective of the law in the
statutory text itself. The legislature found that "sex offenders
pose a high risk of reoffending," and identified "protecting the
public from sex offenders" as the "primary governmental interest"
of the law. 1994 Alaska Sess. Laws ch. 41, § 1. The legislature
further determined that "release of certain information about sex
offenders to public agencies and the general public will assist in
protecting the public safety."
Ibid. As we observed in
Hendricks, where we examined an
ex post facto
challenge to a postincarceration confinement of sex offenders, an
imposition of restrictive measures on sex offenders adjudged to be
dangerous is "a legitimate nonpunitive governmental objective and
has been historically so regarded." 521 U. S., at 363. In this
case, as in
Hendricks, "[n]othing on the face of the statute
suggests that the legislature sought to create anything other than
a civil ... scheme designed to protect the public from harm."
Id., at 361.
Respondents seek to cast doubt upon the nonpunitive nature of
the law's declared objective by pointing out that the Alaska
Constitution lists the need for protecting the public as one of the
purposes of criminal administration. Brief for Respondents 23
(citing Alaska Const., Art. I, § 12). As the Court stated in
Flemming v.
Nestor, rejecting an
ex post facto
challenge to a law terminating benefits to deported aliens, where a
legislative restriction "is an incident of the State's power to
protect the health and safety of its citizens," it will be
considered "as evidencing an intent to exercise that
94
regulatory power, and not a purpose to add to the punishment."
363 U. S., at 616 (citing
Hawker v.
New York, 170 U.
S. 189 (1898)). The Court repeated this principle in 89
Firearms, upholding a statute requiring forfeiture of
unlicensed firearms against a double jeopardy challenge. The Court
observed that, in enacting the provision, Congress "'was concerned
with the widespread traffic in firearms and with their general
availability to those whose possession thereof was contrary to the
public interest.'" 465 U. S., at 364 (quoting
Huddleston v.
United States, 415 U. S. 814, 824
(1974)). This goal was "plainly more remedial than punitive." 465
U. S., at 364. These precedents instruct us that even if the
objective of the Act is consistent with the purposes of the Alaska
criminal justice system, the State's pursuit of it in a regulatory
scheme does not make the objective punitive.
Other formal attributes of a legislative enactment, such as the
manner of its codification or the enforcement procedures it
establishes, are probative of the legislature's intent. See
Hendricks, supra, at 361;
Hudson, supra, at 103; 89
Firearms, supra, at 363. In this case these factors are open
to debate. The notification provisions of the Act are codified in
the State's "Health, Safety, and Housing Code," § 18, confirming
our conclusion that the statute was intended as a nonpunitive
regulatory measure. Cf.
Hendricks, supra, at 361 (the
State's "objective to create a civil proceeding is evidenced by its
placement of the Act within the [State's] probate code, instead of
the criminal code" (citations omitted)). The Act's registration
provisions, however, are codified in the State's criminal procedure
code, and so might seem to point in the opposite direction. These
factors, though, are not dispositive. The location and labels of a
statutory provision do not by themselves transform a civil remedy
into a criminal one. In 89
Firearms, the Court held a
forfeiture provision to be a civil sanction even though the
authorizing statute was in the criminal code. 465 U. S., at
364-365.
95
The Court rejected the argument that the placement demonstrated
Congress' "intention to create an additional criminal sanction,"
observing that "both criminal and civil sanctions may be labeled
'penalties.'"
Id., at 364, n. 6.
The same rationale applies here. Title 12 of Alaska's Code of
Criminal Procedure (where the Act's registration provisions are
located) contains many provisions that do not involve criminal
punishment, such as civil procedures for disposing of recovered and
seized property, Alaska Stat. § 12.36.010
et seq. (2000);
laws protecting the confidentiality of victims and witnesses, §
12.61.010
et seq.; laws governing the security and accuracy
of criminal justice information, § 12.62.110
et seq.; laws
governing civil postconviction actions, § 12.72.010
et seq.;
and laws governing actions for writs of habeas corpus, § 12.75.010
et seq., which under Alaska law are "independent civil
proceeding[s],"
State v.
Hannagan, 559 P. 2d 1059,
1063 (Alaska 1977). Although some of these provisions relate to
criminal administration, they are not in themselves punitive. The
partial codification of the Act in the State's criminal procedure
code is not sufficient to support a conclusion that the legislative
intent was punitive.
The procedural mechanisms to implement the Act do not alter our
conclusion. After the Act's adoption Alaska amended its Rules of
Criminal Procedure concerning the acceptance of pleas and the
entering of criminal judgments. The rule on pleas now requires the
court to "infor[m] the defendant in writing of the requirements of
[the Act] and, if it can be determined by the court, the period of
registration required." Alaska Rule Crim. Proc. 11(c)(4) (2002).
Similarly, the written judgments for sex offenses and child
kidnapings "must set out the requirements of [the Act] and, if it
can be determined by the court, whether that conviction will
require the offender or kidnapper to register for life or a lesser
period." Alaska Stat. § 12.55.148(a) (2000).
The policy to alert convicted offenders to the civil
consequences of their criminal conduct does not render the
conse-
96
quences themselves punitive. When a State sets up a regulatory
scheme, it is logical to provide those persons subject to it with
clear and unambiguous notice of the requirements and the penalties
for noncompliance. The Act requires registration either before the
offender's release from confinement or within a day of his
conviction (if the offender is not imprisoned). Timely and adequate
notice serves to apprise individuals of their responsibilities and
to ensure compliance with the regulatory scheme. Notice is
important, for the scheme is enforced by criminal penalties. See §§
11.56.835, 11.56.840. Although other methods of notification may be
available, it is effective to make it part of the plea colloquy or
the judgment of conviction. Invoking the criminal process in aid of
a statutory regime does not render the statutory scheme itself
punitive.
Our conclusion is strengthened by the fact that, aside from the
duty to register, the statute itself mandates no procedures.
Instead, it vests the authority to promulgate implementing
regulations with the Alaska Department of Public Safety, §§
12.63.020(b), 18.65.087(d)-an agency charged with enforcement of
both criminal
and civil regulatory laws. See,
e.
g., § 17.30.100 (enforcement of drug laws); § 18.70.010
(fire protection); § 28.05.011 (motor vehicles and road safety); §
44.41.020 (protection of life and property). The Act itself does
not require the procedures adopted to contain any safeguards
associated with the criminal process. That leads us to infer that
the legislature envisioned the Act's implementation to be civil and
administrative. By contemplating "distinctly civil procedures," the
legislature "indicate[d] clearly that it intended a civil, not a
criminal sanction."
Ursery, 518 U. S., at 289 (internal
quotation marks omitted; alteration in original).
We conclude, as did the District Court and the Court of Appeals,
that the intent of the Alaska Legislature was to create a civil,
nonpunitive regime.
97
B
In analyzing the effects of the Act we refer to the seven
factors noted in
Kennedy v.
Mendoza-Martinez,
372 U. S. 144,
168-169 (1963), as a useful framework. These factors, which
migrated into our
ex post facto case law from double
jeopardy jurisprudence, have their earlier origins in cases under
the Sixth and Eighth Amendments, as well as the Bill of Attainder
and the
Ex Post Facto Clauses. See
id., at 168-169,
and nn. 22-28. Because the
Mendoza-Martinez factors are
designed to apply in various constitutional contexts, we have said
they are "neither exhaustive nor dispositive,"
United States
v.
Ward, 448 U. S., at 249; 89
Firearms, 465 U. S.,
at 365, n. 7, but are "useful guideposts,"
Hudson, 522 U.
S., at 99. 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.
A historical survey can be useful because a State that decides
to punish an individual is likely to select a means deemed punitive
in our tradition, so that the public will recognize it as such. The
Court of Appeals observed that the sex offender registration and
notification statutes "are of fairly recent origin," 259 F. 3d, at
989, which suggests that the statute was not meant as a punitive
measure, or, at least, that it did not involve a traditional means
of punishing. Respondents argue, however, that the Act-and, in
particular, its notification provisions-resemble shaming
punishments of the colonial period. Brief for Respondents 33-34
(citing A. Earle, Curious Punishments of Bygone Days 1-2
(1896)).
Some colonial punishments indeed were meant to inflict public
disgrace. Humiliated offenders were required "to stand in public
with signs cataloguing their offenses." Hirsch, From Pillory to
Penitentiary: The Rise of Criminal
98
Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179,
1226 (1982); see also L. Friedman, Crime and Punishment in American
History 38 (1993). At times the labeling would be permanent: A
murderer might be branded with an "M," and a thief with a "T." R.
Semmes, Crime and Punishment in Early Maryland 35 (1938); see also
Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L.
Rev. 1880, 1913 (1991). The aim was to make these offenders suffer
"permanent stigmas, which in effect cast the person out of the
community."
Ibid.; see also Friedman,
supra, at 40;
Hirsch,
supra, at 1228. The most serious offenders were
banished, after which they could neither return to their original
community nor, reputation tarnished, be admitted easily into a new
one. T. Blomberg & K. Lucken, American Penology: A History of
Control 30-31 (2000). Respondents contend that Alaska's compulsory
registration and notification resemble these historical
punishments, for they publicize the crime, associate it with his
name, and, with the most serious offenders, do so for life.
Any initial resemblance to early punishments is, however,
misleading. Punishments such as whipping, pillory, and branding
inflicted physical pain and staged a direct confrontation between
the offender and the public. Even punishments that lacked the
corporal component, such as public shaming, humiliation, and
banishment, involved more than the dissemination of information.
They either held the person up before his fellow citizens for
face-to-face shaming or expelled him from the community. See Earle,
supra, at 20, 35-36, 51-52; Massaro,
supra, at
1912-1924; Semmes,
supra, at 39-40; Blomberg & Lucken,
supra, at 30-31. By contrast, the stigma of Alaska's Megan's
Law results not from public display for ridicule and shaming but
from the dissemination of accurate information about a criminal
record, most of which is already public. Our system does not treat
dissemination of truthful information in furtherance of a
legitimate governmental objective as punishment. On the con-
99
trary, our criminal law tradition insists on public indictment,
public trial, and public imposition of sentence. Transparency is
essential to maintaining public respect for the criminal justice
system, ensuring its integrity, and protecting the rights of the
accused. The publicity may cause adverse consequences for the
convicted defendant, running from mild personal embarrassment to
social ostracism. In contrast to the colonial shaming punishments,
however, the State does not make the publicity and the resulting
stigma an integral part of the objective of the regulatory
scheme.
The fact that Alaska posts the information on the Internet does
not alter our conclusion. It must be acknowledged that notice of a
criminal conviction subjects the offender to public shame, the
humiliation increasing in proportion to the extent of the
publicity. And the geographic reach of the Internet is greater than
anything which could have been designed in colonial times. 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.
We next consider whether the Act subjects respondents to an
"affirmative disability or restraint."
Mendoza-Martinez,
supra, at 168. Here, we inquire how the effects of the
100
Act are felt by those subject to it. If the disability or
restraint is minor and indirect, its effects are unlikely to be
punitive.
The Act imposes no physical restraint, and so does not resemble
the punishment of imprisonment, which is the paradigmatic
affirmative disability or restraint.
Hudson, 522 U. S., at
104. The Act's obligations are less harsh than the sanctions of
occupational debarment, which we have held to be nonpunitive. See
ibid. (forbidding further participation in the banking
industry);
De Veau v.
Braisted, 363 U. S. 144 (1960)
(forbidding work as a union official);
Hawker v.
New
York, 170 U. S.
189 (1898) (revocation of a medical license). The Act does not
restrain activities sex offenders may pursue but leaves them free
to change jobs or residences.
The Court of Appeals sought to distinguish
Hawker and
cases which have followed it on the grounds that the disability at
issue there was specific and "narrow," confined to particular
professions, whereas "the procedures employed under the Alaska
statute are likely to make [respondents]
completely
unemployable" because "employers will not want to risk loss of
business when the public learns that they have hired sex
offenders." 259 F. 3d, at 988. This is conjecture. Landlords and
employers could conduct background checks on the criminal records
of prospective employees or tenants even with the Act not in force.
The record in this case contains no evidence that the Act has led
to substantial occupational or housing disadvantages for former sex
offenders that would not have otherwise occurred through the use of
routine background checks by employers and landlords. The Court of
Appeals identified only one incident from the 7-year history of
Alaska's law where a sex offender suffered community hostility and
damage to his business after the information he submitted to the
registry became public.
Id., at 987988. This could have
occurred in any event, because the information about the
individual's conviction was already in the public domain.
101
Although the public availability of the information may have a
lasting and painful impact on the convicted sex offender, these
consequences flow not from the Act's registration and dissemination
provisions, but from the fact of conviction, already a matter of
public record. The State makes the facts underlying the offenses
and the resulting convictions accessible so members of the public
can take the precautions they deem necessary before dealing with
the registrant.
The Court of Appeals reasoned that the requirement of periodic
updates imposed an affirmative disability. In reaching this
conclusion, the Court of Appeals was under a misapprehension,
albeit one created by the State itself during the argument below,
that the offender had to update the registry in person.
Id.,
at 984, n. 4. The State's representation was erroneous. The Alaska
statute, on its face, does not require these updates to be made in
person. And, as respondents conceded at the oral argument before
us, the record contains no indication that an in-person appearance
requirement has been imposed on any sex offender subject to the
Act. Tr. of Oral Arg. 26-28.
The Court of Appeals held that the registration system is
parallel to probation or supervised release in terms of the
restraint imposed. 259 F. 3d, at 987. This argument has some force,
but, after due consideration, we reject it. Probation and
supervised release entail a series of mandatory conditions and
allow the supervising officer to seek the revocation of probation
or release in case of infraction. See generally
Johnson v.
United States, 529 U. S. 694 (2000);
Griffin v.
Wisconsin, 483 U. S. 868 (1987). By
contrast, offenders subject to the Alaska statute are free to move
where they wish and to live and work as other citizens, with no
supervision. Although registrants must inform the authorities after
they change their facial features (such as growing a beard), borrow
a car, or seek psychiatric treatment, they are not required to seek
permission to do so. A sex offender
102
who fails to comply with the reporting requirement may be
subjected to a criminal prosecution for that failure, but any
prosecution is a proceeding separate from the individual's original
offense. Whether other constitutional objections can be raised to a
mandatory reporting requirement, and how those questions might be
resolved, are concerns beyond the scope of this opinion. It
suffices to say the registration requirements make a valid
regulatory program effective and do not impose punitive restraints
in violation of the
Ex Post Facto Clause.
The State concedes that the statute might deter future crimes.
Respondents seize on this proposition to argue that the law is
punitive, because deterrence is one purpose of punishment. Brief
for Respondents 37. This proves too much. Any number of
governmental programs might deter crime without imposing
punishment. "To hold that the mere presence of a deterrent purpose
renders such sanctions 'criminal' ... would severely undermine the
Government's ability to engage in effective regulation."
Hudson,
supra, at 105; see also
Ursery, 518 U. S., at 292; 89
Firearms, 465 U. S., at 364.
The Court of Appeals was incorrect to conclude that the Act's
registration obligations were retributive because "the length of
the reporting requirement appears to be measured by the extent of
the wrongdoing, not by the extent of the risk posed." 259 F. 3d, at
990. The Act, it is true, differentiates between individuals
convicted of aggravated or multiple offenses and those convicted of
a single nonaggravated offense. Alaska Stat. § 12.63.020(a)(1)
(2000). The broad categories, however, and the corresponding length
of the reporting requirement, are reasonably related to the danger
of recidivism, and this is consistent with the regulatory
objective.
The Act's rational connection to a nonpunitive purpose is a
"[m]ost significant" factor in our determination that the statute's
effects are not punitive.
Ursery, supra, at 290. As the
Court of Appeals acknowledged, the Act has a legit-
103
imate nonpunitive purpose of "public safety, which is advanced
by alerting the public to the risk of sex offenders in their
communit[y]." 259 F. 3d, at 991. Respondents concede, in turn, that
"this alternative purpose is valid, and rational." Brief for
Respondents 38. They contend, however, that the Act lacks the
necessary regulatory connection because it is not "narrowly drawn
to accomplish the stated purpose."
Ibid. A statute is not
deemed punitive simply because it lacks a close or perfect fit with
the nonpunitive aims it seeks to advance. The imprecision
respondents rely upon does not suggest that the Act's nonpunitive
purpose is a "sham or mere pretext."
Hendricks, 521 U. S.,
at 371 (KENNEDY, J., concurring).
In concluding the Act was excessive in relation to its
regulatory purpose, the Court of Appeals relied in large part on
two propositions: first, that the statute applies to all convicted
sex offenders without regard to their future dangerousness; and,
second, that it places no limits on the number of persons who have
access to the information. 259 F. 3d, at 991-992. Neither argument
is persuasive.
Alaska could conclude that a conviction for a sex offense
provides evidence of substantial risk of recidivism. The
legislature's findings are consistent with grave concerns over the
high rate of recidivism among convicted sex offenders and their
dangerousness as a class. The risk of recidivism posed by sex
offenders is "frightening and high."
McKune v.
Lile,
536 U. S. 24, 34
(2002); see also
id., at 33 ("When convicted sex offenders
reenter society, they are much more likely than any other type of
offender to be rearrested for a new rape or sexual assault" (citing
U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses
and Offenders 27 (1997); U. S. Dept. of Justice, Bureau of Justice
Statistics, Recidivism of Prisoners Released in 1983, p. 6
(1997))).
The
Ex Post Facto Clause does not preclude a State from
making reasonable categorical judgments that conviction of
specified crimes should entail particular regulatory conse-
104
quences. We have upheld against
ex post facto challenges
laws imposing regulatory burdens on individuals convicted of crimes
without any corresponding risk assessment. See
De Veau, 363
U. S., at 160;
Hawker, 170 U. S., at 197. As stated in
Hawker: "Doubtless, one who has violated the criminallaw may
thereafter reform and become in fact possessed of a good moral
character. But the legislature has power in cases of this kind to
make a rule of universal application .... "
Ibid. The
State's determination to legislate with respect to convicted sex
offenders as a class, rather than require individual determination
of their dangerousness, does not make the statute a punishment
under the
Ex Post Facto Clause.
Our decision in
Hendricks, on which respondents rely,
Brief for Respondents 39, is not to the contrary. The State's
objective in
Hendricks was involuntary (and potentially
indefinite) confinement of "particularly dangerous individuals."
521 U. S., at 357-358, 364. The magnitude of the restraint made
individual assessment appropriate. The Act, by contrast, imposes
the more minor condition of registration. In the context of the
regulatory scheme the State can dispense with individual
predictions of future dangerousness and allow the public to assess
the risk on the basis of accurate, nonprivate information about the
registrants' convictions without violating the prohibitions of the
Ex Post Facto Clause.
The duration of the reporting requirements is not excessive.
Empirical research on child molesters, for instance, has shown
that, "[c]ontrary to conventional wisdom, most reoffenses do not
occur within the first several years after release," but may occur
"as late as 20 years following release." National Institute of
Justice, R. Prentky, R. Knight, & A. Lee, U. S. Dept. of
Justice, Child Sexual Molestation: Research Issues 14 (1997).
The Court of Appeals' reliance on the wide dissemination of the
information is also unavailing. The Ninth Circuit
105
highlighted that the information was available "world-wide" and
"[b]roadcas[t]" in an indiscriminate manner. 259 F. 3d, at 992. As
we have explained, however, the notification system is a passive
one: An individual must seek access to the information. The Web
site warns that the use of displayed information "to commit a
criminal act against another person is subject to criminal
prosecution."
http://www.dps.state. ak.us/nSorcr/asp/
(as visited Jan. 17, 2003) (available in the Clerk of Court's case
file). Given the general mobility of our population, for Alaska to
make its registry system available and easily accessible throughout
the State was not so excessive a regulatory requirement as to
become a punishment. See D. Schram & C. Milloy, Community
Notification: A Study of Offender Characteristics and Recidivism 13
(1995) (38% of recidivist sex offenses in the State of Washington
took place in jurisdictions other than where the previous offense
was committed).
The excessiveness inquiry of our
ex post facto
jurisprudence is not an exercise in determining whether the
legislature has made the best choice possible to address the
problem it seeks to remedy. The question is whether the regulatory
means chosen are reasonable in light of the nonpunitive objective.
The Act meets this standard.
The two remaining
Mendoza-Martinez factors-whether the
regulation comes into play only on a finding of scienter and
whether the behavior to which it applies is already a crime-are of
little weight in this case. The regulatory scheme applies only to
past conduct, which was, and is, a crime. This is a necessary
beginning point, for recidivism is the statutory concern. The
obligations the statute imposes are the responsibility of
registration, a duty not predicated upon some present or repeated
violation.
Our examination of the Act's effects leads to the determination
that respondents cannot show, much less by the clearest proof, that
the effects of the law negate Alaska's intention to establish a
civil regulatory scheme. The Act is nonpuni-
106
tive, and its retroactive application does not violate the
Ex
Post Facto Clause. The judgment of the Court of Appeals for the
Ninth Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring.
I join the Court's opinion upholding the Alaska Sex Offender
Registration Act (ASORA) against
ex post facto challenge. I
write separately, however, to reiterate that "there is no place for
[an implementation-based] challenge" in our
ex post facto
jurisprudence.
Seling v.
Young, 531 U. S. 250, 273 (2001)
(THOMAS, J., concurring in judgment). Instead, the determination
whether a scheme is criminal or civil must be limited to the
analysis of the obligations actually created by statute. See
id., at 273-274 ("[T]o the extent that the conditions result
from the fact that the statute is not being applied according to
its terms, the conditions are
not the effect of the statute,
but rather the effect of its improper implementation"). As we have
stated, the categorization of a proceeding as civil or criminal is
accomplished by examining "the statute on its face."
Hudson
v.
United States, 522 U. S. 93, 100 (1997) (internal
quotation marks omitted).
In this case, ASORA does not specify a means of making registry
information available to the public. It states only that
"[i]nformation about a sex offender ... that is contained in the
central registry ... is confidential and not subject to public
disclosure except as to the sex offender's ... name, aliases,
address, photograph, physical description, description of motor
vehicles, license numbers of motor vehicles, and vehicle
identification numbers of motor vehicles, place of employment, date
of birth, crime for which convicted, date of conviction, place and
court of conviction, length and conditions of sentence, and a
107
statement as to whether the offender ... is in compliance with
requirements of AS 12.63 or cannot be located." Alaska Stat. §
18.65.087(b) (2000).
By considering whether Internet dissemination renders ASORA
punitive, the Court has strayed from the statute. With this
qualification, I concur.
JUSTICE SOUTER, concurring in the judgment.
I agree with the Court that Alaska's Sex Offender Registration
Act does not amount to an
ex post facto law. But the
majority comes to that conclusion by a different path from mine,
and I concur only in the judgment.
As the Court says, our cases have adopted a two-step enquiry to
see whether a law is punitive for purposes of various
constitutional provisions including the
Ex Post Facto
Clause. At the first step in applying the so-called
Kennedy-Ward test, we ask whether the legislature intended a
civil or criminal consequence; at the second, we look behind the
legislature's preferred classification to the law's substance,
focusing on its purpose and effects. See
United States v.
Ward, 448 U. S. 242, 248-249 (1980);
Kennedy v.
Mendoza-Martinez, 372 U. S. 144, 168-169
(1963). We have said that "'only the clearest proof'" that a law is
punitive based on substantial factors will be able to overcome the
legislative categorization.
Ward, supra, at 249 (quoting
Flemming v.
Nestor, 363 U. S. 603, 617 (1960)). I
continue to think, however, that this heightened burden makes sense
only when the evidence of legislative intent clearly points in the
civil direction. See
Hudson v.
United States,
522 U. S. 93,
113-114 (1997) (SouTER, J., concurring in judgment). This means
that for me this is a close case, for I not only agree with the
Court that there is evidence pointing to an intended civil
characterization of the Act, but also see considerable evidence
pointing the other way.
The Act does not expressly designate the requirements imposed as
"civil," a fact that itself makes this different from
108
SOUTER, J., concurring in judgment
our past cases, which have relied heavily on the legislature's
stated label in finding a civil intent. See
Hudson, supra,
at
103; Kansas v.
Hendricks, 521 U. S. 346, 361
(1997);
Allen v.
Illinois, 478 U. S. 364, 368
(1986). The placement of the Act in the State's code, another
important indicator, see
Hendricks, supra, at 361, also
leaves matters in the air, for although the section establishing
the registry is among the code's health and safety provisions,
which are civil, see Alaska Stat. § 18.65.087 (2000), the section
requiring registration occurs in the title governing criminal
procedure, see § 12.63.010. What is more, the legislature made
written notification of the requirement a necessary condition of
any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and,
perhaps most significant, it mandated a statement of the
requirement as an element of the actual judgment of conviction for
covered sex offenses, see Alaska Stat. § 12.55.148 (2000); Alaska
Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see
Hudson, supra, at 103, offenders are obliged, at least
initially, to register with state and local police, see §§
12.63.010(b), (c), although the actual information so obtained is
kept by the State's Department of Public Safety, a regulatory
agency, see § 18.65.087(a). These formal facts do not force a
criminal characterization, but they stand in the way of asserting
that the statute's intended character is clearly civil.
The substantial indicators relevant at step two of the
Kennedy- Ward analysis likewise point in different
directions. To start with purpose, the Act's legislative history
shows it was designed to prevent repeat sex offenses and to aid the
investigation of reported offenses. See 1994 Alaska Sess. Laws ch.
41, § 1; Brief for Petitioners 26, n. 13. Ensuring public safety
is, of course, a fundamental regulatory goal, see,
e. g., United
States v.
Salerno, 481 U. S. 739, 747
(1987), and this objective should be given serious weight in the
analyses. But, at the same time, it would be naive to look no
109
further, given pervasive attitudes toward sex offenders, see
infra this page and 110, n. See
Weaver v.
Graham,
450 U. S. 24, 29 (1981)
(Ex Post Facto Clause was meant
to prevent "arbitrary and potentially vindictive legislation"). The
fact that the Act uses past crime as the touchstone, probably
sweeping in a significant number of people who pose no real threat
to the community, serves to feed suspicion that something more than
regulation of safety is going on; when a legislature uses prior
convictions to impose burdens that outpace the law's stated civil
aims, there is room for serious argument that the ulterior purpose
is to revisit past crimes, not prevent future ones. See
Kennedy,
supra, at 169.
That argument can claim support, too, from the severity of the
burdens imposed. Widespread dissemination of offenders' names,
photographs, addresses, and criminal history serves not only to
inform the public but also to humiliate and ostracize the convicts.
It thus bears some resemblance to shaming punishments that were
used earlier in our history to disable offenders from living
normally in the community. See,
e. g., Massaro,
Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880,
1913 (1991). While the Court accepts the State's explanation that
the Act simply makes public information available in a new way,
ante, at 99, the scheme does much more. Its point, after
all, is to send a message that probably would not otherwise be
heard, by selecting some conviction information out of its corpus
of penal records and broadcasting it with a warning. Selection
makes a statement, one that affects common reputation and sometimes
carries harsher consequences, such as exclusion from jobs or
housing, harassment, and physical harm. *
*1 seriously doubt that the Act's requirements are "less harsh
than the sanctions of occupational debarment" that we upheld in
Hudson v.
United States, 522 U. S. 93 (1997),
De
Veau v.
Braisted, 363 U. S. 144 (1960), and
Hawker v.
New York, 170 U. S. 189 (1898). See
ante, at 100. It is true that the Act imposes no formal
proscription against any particular employ-
110
Opinion of STEVENS, J.
To me, the indications of punitive character stated above and
the civil indications weighed heavily by the Court are in rough
equipoise. Certainly the formal evidence of legislative intent does
not justify requiring the" 'clearest proof'" of penal substance in
this case, see
Hudson, 522 U. S., at 113-114 (SOUTER, J.,
concurring in judgment), and the substantial evidence does not
affirmatively show with any clarity that the Act is valid. What
tips the scale for me is the presumption of constitutionality
normally accorded a State's law. That presumption gives the State
the benefit of the doubt in close cases like this one, and on that
basis alone I concur in the Court's judgment.
JUSTICE STEVENS, dissenting in No. 01-729 and concurring in the
judgment in No. 01-1231.*
These two cases raise questions about statutes that impose
affirmative obligations on convicted sex offenders. The question in
No. 01-729 is whether the Alaska Sex Offender Registration Act is
an
ex post facto law, and in No. 01-1231
ment, but there is significant evidence of onerous practical
effects of being listed on a sex offender registry. See,
e. g.,
Doe v.
Pataki, 120 F.3d
1263,
1279 (CA2 1997) (noting "numerous instances in
which sex offenders have suffered harm in the aftermath of
notification-ranging from public shunning, picketing, press vigils,
ostracism, loss of employment, and eviction, to threats of
violence, physical attacks, and arson");
E. B. v.
Verniero, 119 F.3d
1077, 1102
(CA3 1997) ("The record documents that
registrants and their families have experienced profound
humiliation and isolation as a result of the reaction of those
notified. Employment and employment opportunities have been
jeopardized or lost. Housing and housing opportunities have
suffered a similar fate. Family and other personal relationships
have been destroyed or severely strained. Retribution has been
visited by private, unlawful violence and threats and, while such
incidents of 'vigilante justice' are not common, they happen with
sufficient frequency and publicity that registrants justifiably
live in fear of them"); Brief for Office of the Public Defender for
the State of New Jersey et al. as
Amici Curiae 7-21
(describing specific incidents).
*[This opinion applies also to No. 01-1231, Connecticut Dept. of
Public Safety v. Doe, ante, p. 1.]
111
it is whether Connecticut's similar law violates the Due Process
Clause.
The Court's opinions in both cases fail to decide whether the
statutes deprive the registrants of a constitutionally protected
interest in liberty. If no liberty interest were implicated, it
seems clear that neither statute would raise a colorable
constitutional claim. Cf.
Meachum v.
Fano, 427 U. S. 215 (1976).
Proper analysis of both cases should therefore begin with a
consideration of the impact of the statutes on the registrants'
freedom.
The statutes impose significant affirmative obligations and a
severe stigma on every person to whom they apply. In Alaska, an
offender who has served his sentence for a single, nonaggravated
crime must provide local law enforcement authorities with extensive
personal information-including his address, his place of
employment, the address of his employer, the license plate number
and make and model of any car to which he has access, a current
photo, identifying features, and medical treatment-at least once a
year for 15 years. If one has been convicted of an aggravated
offense or more than one offense, he must report this same
information at least quarterly for life. Moreover, if he moves, he
has
one working day to provide updated information.
Registrants may not shave their beards, color their hair, change
their employer, or borrow a car without reporting those events to
the authorities. Much of this registration information is placed on
the Internet. In Alaska, the registrant's face appears on a webpage
under the label "Registered Sex Offender." His physical
description, street address, employer address, and conviction
information are also displayed on this page.
The registration and reporting duties imposed on convicted sex
offenders are comparable to the duties imposed on other convicted
criminals during periods of supervised release or parole. And there
can be no doubt that the "[w]idespread public access,"
ante,
at 99 (opinion in No. 01-
112
Opinion of STEVENS, J.
729), to this personal and constantly updated information has a
severe stigmatizing effect. See Brief for the Office of the Public
Defender for the State of New Jersey et al. as
Amici Curiae
7-21 (providing examples of threats, assaults, loss of housing, and
loss of jobs experienced by sex offenders after their registration
information was made widely available). In my judgment, these
statutes unquestionably affect a constitutionally protected
interest in liberty. Cf.
Wisconsin v.
Constantineau,
400 U. S. 433
(1971).
It is also clear beyond peradventure that these unique
consequences of conviction of a sex offense are punitive. They
share three characteristics, which in the aggregate are not present
in any civil sanction. The sanctions (1) constitute a severe
deprivation of the offender's liberty, (2) are imposed on everyone
who is convicted of a relevant criminal offense, and (3) are
imposed only on those criminals. Unlike any of the cases that the
Court has cited, a criminal conviction under these statutes
provides both a
sufficient and a
necessary condition
for the sanction.
To be sure, there are cases in which we have held that it was
not punishment and thus not a violation of the
Ex Post Facto
Clause to deny future privileges to individuals who were convicted
of crimes. See,
e. g., De Veau v.
Braisted, 363 U. S. 144 (1960)
(upholding prohibition of convicted felons from working for
waterfront unions);
Hawker v.
New York, 170 U. S. 189 (1898)
(upholding prohibition of doctors who had been convicted of a
felony from practicing medicine). Those cases are distinguishable
because in each the prior conviction was a sufficient condition for
the imposition of the burden, but it was not a necessary one. That
is, one may be barred from participation in a union because he has
not paid fines imposed on him. See
NLRB v.
Allis-Chalmers
Mfg. Co., 388 U. S. 175, 191-192
(1967). And a doctor may not be permitted to practice medicine
because she is no longer competent to do so. See,
e.
g., N. J. Stat. Ann. § 45:1-21 (West Supp. 2002).
113
Likewise, in
Kansas v.
Hendricks, 521 U. S. 346 (1997), the
Court held that a law that permitted the civil commitment of
persons who had committed or had been charged with a sexually
violent offense was not an
ex post facto law. But the fact
that someone had been convicted was not sufficient to authorize
civil commitment under Kansas law because Kansas required another
proceeding to determine if such a person suffered from a "'mental
abnormality or personality disorder which makes the person likely
to engage in the predatory acts of sexual violence.'"
Id.,
at 352. Nor was the conviction even a necessary predicate for the
commitment. See
ibid. (Kansas' civil commitment procedures
also applied to individuals charged with a sexually violent offense
but found incompetent to stand for trial, or found not guilty by
reason of insanity or by reason of mental disease or defect). While
one might disagree in other respects with
Hendricks, it is
clear that a conviction standing alone did not make anyone eligible
for the burden imposed by that statute.
No matter how often the Court may repeat and manipulate
multifactor tests that have been applied in wholly dissimilar cases
involving only one or two of these three aspects of these statutory
sanctions, it will never persuade me that the registration and
reporting obligations that are imposed on convicted sex offenders
and on no one else as a result of their convictions are not
part of their punishment. In my opinion, a sanction that (1) is
imposed on everyone who commits a criminal offense, (2) is not
imposed on anyone else, and (3) severely impairs a person's liberty
is punishment.
It is therefore clear to me that the Constitution prohibits the
addition of these sanctions to the punishment of persons who were
tried and convicted before the legislation was enacted. As the
Court recognizes, "recidivism is the statutory concern" that
provides the supposed justification for the imposition of such
retroactive punishment.
Ante, at 105 (opinion in No.
01-729). That is the principal rationale that underlies the "three
strikes" statute that the Court has up-
114
held in
Ewing v.
California, ante, p. 11. Reliance
on that rationale here highlights the conclusion that the
retroactive application of these statutes constitutes a flagrant
violation of the protections afforded by the Double Jeopardy and
Ex Post Facto Clauses of the Constitution.
I think it equally clear, however, that the State may impose
registration duties and may publish registration information as a
part of its punishment of this category of defendants. Looking to
the future, these aspects of their punishment are adequately
justified by two of the traditional aims of punishment-retribution
and deterrence. Moreover, as a matter of procedural fairness,
Alaska requires its judges to include notice of the registration
requirements in judgments imposing sentences on convicted sex
offenders and in the colloquy preceding the acceptance of a plea of
guilty to such an offense. See Alaska Rules Crim. Proc. 11 (c) (4)
and 32 (c) (2002). Thus, I agree with the Court that these statutes
are constitutional as applied to postenactment offenses.
Accordingly, I would hold that the Alaska statute violates the
constitutional prohibition on
ex post facto laws. Because I
believe registration and publication are a permissible component of
the punishment for this category of crimes, however, for those
convicted of offenses committed after the effective date of such
legislation, there would be no separate procedural due process
violation so long as a defendant is provided a constitutionally
adequate trial. I therefore concur in the Court's disposition of
the Connecticut case, No. 01-1231, and I respectfully dissent from
its disposition of the Alaska case, No. 01-729.
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
dissenting.
As JUSTICE SOUTER carefully explains, it is unclear whether the
Alaska Legislature conceived of the State's Sex Offender
Registration Act as a regulatory measure or as a
115
penal law. See
ante, at 107-109 (opinion concurring in
judgment). Accordingly, in resolving whether the Act ranks as penal
for
ex post facto purposes, I would not demand "the clearest
proof" that the statute is in effect criminal rather than civil.
Instead, guided by
Kennedy v.
MendozaMartinez,
372 U. S. 144
(1963), I would neutrally evaluate the Act's purpose and effects.
See
id., at 168-169 (listing seven factors courts should
consider "[a]bsent conclusive evidence of [legislative] intent as
to the penal nature of a statute"); cf.
Hudson v.
United
States, 522 U. S.
93, 115 (1997) (BREYER, J., concurring in judgment) ("[I]n fact
if not in theory, the Court has simply applied factors of the
Kennedy variety to the matter at hand.").l
Measured by the
Mendoza-Martinez factors, I would hold
Alaska's Act punitive in effect. Beyond doubt, the Act involves an
"affirmative disability or restraint." 372 U. S., at 168. As
JUSTICE STEVENS and JUSTICE SOUTER spell out, Alaska's Act imposes
onerous and intrusive obligations on convicted sex offenders; and
it exposes registrants, through aggressive public notification of
their crimes, to profound humiliation and community-wide ostracism.
See
ante, at 109, and n. (SOUTER, J., concurring in
judgment);
ante, at 111-112 (STEVENS, J., dissenting in No.
01-729 and concurring in judgment in No. 01-1231).
Furthermore, the Act's requirements resemble historically common
forms of punishment. See
Mendoza-Martinez, 372 U. S., at
168. Its registration and reporting provisions are comparable to
conditions of supervised release or parole; its
IThe
Mendoza-Martinez factors include "[w]hether the
sanction involves an affirmative disability or restraint, whether
it has historically been regarded as a punishment, whether it comes
into play only on a finding of
scienter, whether its
operation will promote the traditional aims of
punishment-retribution and deterrence, whether the behavior to
which it applies is already a crime, whether an alternative
[nonpunitive] purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation to
the alternative purpose assigned." 372 U. S., at 168-169.
116
public notification regimen, which permits placement of the
registrant's face on a webpage under the label "Registered Sex
Offender," calls to mind shaming punishments once used to mark an
offender as someone to be shunned. See
ante, at 111-112
(STEVENS, J., dissenting in No. 01-729 and concurring in judgment
in No. 01-1231);
ante, at 109 (SOUTER, J., concurring in
judgment).
Telling too, as JUSTICE SOUTER observes, past crime alone, not
current dangerousness, is the "touchstone" triggering the Act's
obligations.
Ibid. (opinion concurring in judgment); see
ante, at 112-113 (STEVENS, J., dissenting in No. 01-729 and
concurring in judgment in No. 01-1231). This touchstone adds to the
impression that the Act retributively targets past guilt, i.
e., that it "revisit[s] past crimes [more than it]
prevent[s] future ones."
Ante, at 109 (SouTER, J.,
concurring in judgment); see
Mendoza-Martinez, 372 U. S., at
168.
Tending the other way, I acknowledge, the Court has ranked some
laws civil and nonpunitive although they impose significant
disabilities or restraints. See,
e. g., Flemming v.
Nestor, 363 U.
S. 603 (1960) (termination of accrued disability benefits
payable to deported resident aliens);
Kansas v.
Hendricks, 521
U. S. 346 (1997) (civil confinement of mentally ill sex
offenders). The Court has also deemed some laws nonpunitive despite
"punitive aspects." See
United States v.
Ursery,
518 U. S. 267,
290 (1996).
What ultimately tips the balance for me is the Act's
excessiveness in relation to its nonpunitive purpose. See
Mendoza-Martinez, 372 U. S., at 169. As respondents concede,
see Brief for Respondents 38, the Act has a legitimate civil
purpose: to promote public safety by alerting the public to
potentially recidivist sex offenders in the community. See
ante, at 102-103 (majority opinion). But its scope notably
exceeds this purpose. The Act applies to all convicted sex
offenders, without regard to their future dangerousness. And the
duration of the reporting requirement is keyed not
117
to any determination of a particular offender's risk of
reoffending, but to whether the offense of conviction qualified as
aggravated. The reporting requirements themselves are exorbitant:
The Act requires aggravated offenders to engage in perpetual
quarterly reporting, even if their personal information has not
changed. See
ante, at 90. And meriting heaviest weight in my
judgment, the Act makes no provision whatever for the possibility
of rehabilitation: Offenders cannot shorten their registration or
notification period, even on the clearest demonstration of
rehabilitation or conclusive proof of physical incapacitation.2
However plain it may be that a former sex offender currently poses
no threat of recidivism, he will remain subject to long-term
monitoring and inescapable humiliation.
John Doe I, for example, pleaded
nolo contendere to a
charge of sexual abuse of a minor nine years before the Alaska Act
was enacted. He successfully completed a treatment program, and
gained early release on supervised probation in part because of his
compliance with the program's requirements and his apparent low
risk of reoffense. Brief for Respondents 1. He subsequently
remarried, established a business, and was reunited with his
family.
Ibid. He was also granted custody of a minor
daughter, based on a court's determination that he had been
successfully rehabilitated. See
Doe Iv. Otte, 259 F.3d
979, 983
(CA9 2001). The court's determination rested in
part on psychiatric evaluations concluding that Doe had "a very low
risk of re-offending" and is "not a pedophile."
Ibid.
(internal quotation marks omitted). Notwithstanding this strong
evidence of rehabilitation, the Alaska Act requires Doe to report
personal information to the State four times per year, and permits
the State publicly
2For the reasons stated by JUSTICE SOUTER, see
ante, at
109-110, n. (opinion concurring in judgment), I do not find the
Court's citations to
Hawker v.
New York, 170 U. S. 189 (1898), and
De Veau v.
Braisted, 363 U. S. 144 (1960), see
ante, at 103-104 (majority opinion), convincingly responsive
to this point.
118
to label him a "Registered Sex Offender" for the rest of his
life.
Satisfied that the Act is ambiguous in intent and punitive in
effect, I would hold its retroactive application incompatible with
the
Ex Post Facto Clause, and would therefore affirm the
judgment of the Court of Appeals.
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