holding that applying ASORA to Doe violated federal ex post facto clauseSummary of this case from Doe v. State
Argued and Submitted August 1, 2000.
Opinion Filed April 9, 2001 As Amended July 24, 2001 and August 8, 2001.
Darryl L. Thompson, Esq., Anchorage, Alaska, for plaintiffs-appellants John Doe I and Jane Doe.
Verne Rupright, Esq., Wasilla, Alaska, for plaintiff-appellant John Doe II.
Kenneth M. Rosenstein, Assistant Attorney General, Anchorage, Alaska, for the defendants-appellees.
Appeal from the United States District Court for the District of Alaska; H. Russell Holland, District Judge, Presiding. D.C. No. CV-94-00206-HRH.
Before: D.W. NELSON, REINHARDT and THOMAS, Circuit Judges.
This case involves an extremely sensitive and difficult question, both from a social and legal standpoint. How may society deal with convicted sex offenders after they have been punished for their crimes? How can society protect itself against future offenses and at the same time safeguard the constitutional rights of persons who have fully paid the price imposed by law for their crimes? The issues treated in the Alaska Sex Offender Registration Act we consider here differ only in degree from a host of other issues the citizens of this country regularly face in trying to resolve the inherent tensions between safety and freedom that exist in any democracy.
As it turns out, we can decide the case before us without having to resolve the most fundamental question posed by the Alaska statute: that is, in light of the fundamental liberty interest protected by the Due Process Clause, may rehabilitation, or a judicial determination of lack of future risk, be wholly ignored when imposing restrictive requirements and obligations on persons who have committed a sexual offense and been fully punished for their crimes? Instead, we base our decision on a far narrower constitutional provision, the Ex Post Facto Clause.
The plaintiffs in this action are convicted sex offenders who have completed their sentences. They claim that Alaska's sex offender registration and notification statute, enacted after their convictions, both constitutes an ex post facto law and violates their due process rights. U.S. Const. Article I, § 10; Amend. 14. Because we conclude that, as to defendants whose crimes were committed before its enactment, the Alaska statute violates the Ex Post Facto Clause, we do not resolve the question whether it also violates the Due Process Clause.
The Ex Post Facto Clause serves two purposes: it requires fair notice, and, particularly relevant to the Alaska statute, it acts to "restrai[n] arbitrary and potentially vindictive legislation." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L.Ed. 162 (1810) (the Ex Post Facto Clause checks "the violent acts which might grow out of the feelings of the moment"). Convicted sex offenders have good reason to fear vindictive legislation. Their crimes are viewed by society as an affront to the institution of the family. More important, many of us fear that upon their release, sex offenders will prey on our children and those of our neighbors.
The Ex Post Facto Clause expresses our commitment to constrain the manner in which legislatures can address intense fears of the type evoked by the return to the community of convicted sex offenders. However, its check on legislative power is quite limited — it merely requires that punishment be prospectively imposed. Because the Alaska Sex Offender Registration Act does not comply with this minimal protection, we hold that it may not be applied to persons whose crimes were committed before its enactment.
A. Factual background
On May 12, 1994, Alaska enacted the Alaska Sex Offender Registration Act (sometimes referred to in this opinion as "the Act" or "the Alaska statute"), which requires convicted sex offenders to register with law enforcement authorities and authorizes public disclosure of information in the sex offender registry. 1994 Alaska Sess. Laws 41. In its implementing regulations, Alaska provides that it will, in all cases, post the information from the registry for public viewing in print or electronic form, so that it can be used by "any person" "for any purpose." Alaska Admin. Code tit. 13, § 09.050(a) (2000). Upon passage of the Act, two men required to register, John Doe I and John Doe II, as well as John Doe I's wife, immediately brought a 42 U.S.C. § 1983 action against the state commissioner for public safety and state attorney general to enjoin its enforcement.
In 1985, nine years before the Alaska statute was enacted, Doe I had entered a plea of nolo contendere to a charge of sexual abuse of a minor after a court determined that he had sexually abused his daughter for two years while she was between the ages of nine and eleven. He was sentenced to twelve years incarceration, of which four years were suspended; he was released from prison in 1990. After being released, Doe I was granted custody of his daughter, based on a court's determination that he had been successfully rehabilitated. In making its determination, the court relied, in part, on the findings of psychiatric evaluations concluding that Doe I has "a very low risk of reoffending" and is "not a pedophile." Also, since his release, Doe I married Jane Doe, who was aware of Doe I's conviction for a sex offense.
Jane Doe is a registered nurse in Anchorage, and is well known in the medical community there. She alleges that disclosure of her husband's criminal background will "undermine [her] professional relationships," and her ability to obtain and care for patients.
The third plaintiff, John Doe II, entered a plea of nolo contendere on April 8, 1984 to one count of sexual abuse of a minor for sexual abuse of a 14-year-old child. He was sentenced to eight years in prison, released in 1990, and subsequently completed a two-year program for the treatment of sex offenders.
B. Prior Proceedings
The plaintiffs filed a complaint in the district court claiming that the Alaska statute violates their federal and state constitutional rights and sought leave to proceed under pseudonyms. The district judge granted a preliminary injunction requiring the plaintiffs to register under the act but prohibiting public disclosure of the registration information; at the same time he denied their request to proceed under pseudonyms. See Rowe v. Burton, 884 F.Supp. 1372, 1388 (D.Alaska 1994). The plaintiffs appealed the denial of their use of pseudonyms, and we dismissed the appeal because no final judgment had been entered. On remand, the district judge dismissed the complaint when the plaintiffs would not amend it to include their real names. The plaintiffs appealed the dismissal, and this court reversed, holding that the plaintiffs could proceed under pseudonyms.
When the complaint was filed, Doe I used the pseudonym "James Rowe." However, the court subsequently changed his pseudonym to "John Doe I" after an individual named James Rowe complained that he was suffering ill effects from Doe's use of the name in this matter.
We offer no comment on the tortured course of the proceedings in this case or the fact that it is now seven years since the Alaska statute was enacted. We observe only that we now add to this judicial odyssey by deciding the case on the narrower of the two constitutional grounds, as that affords appellants all the relief they seek. The question whether the statute offends the rights of persons whose crimes were committed after its enactment will have to wait for another day.
C. The Alaska Sex Offender Registration Act
The Alaska Sex Offender Registration Act was enacted at a time when the state legislature perceived that Alaska's high rate of child sexual abuse constituted a "crisis." Legislators heard testimony that Alaska's rate of child sexual abuse was the highest in the country, that one-fourth of Alaska's prison inmates were incarcerated for sexual offenses, and that in 1993, one hundred sex offenders were scheduled for release from prison. On May 12, 1994, Alaska enacted its sex offender registration statute, and subsequently amended it in 1998 and 1999. 1998 Alaska Sess. Laws 81 106 (adding crimes to the list of "sex offenses" requiring registration); 1999 Alaska Sess. Laws 54 (defining "conviction").
The Alaska statute has two main components: it requires sex offender registration, with criminal penalties for failure to register, and it authorizes full disclosure of information about all offenders to the public. The registration provisions require persons convicted of a broad range of offenses against children and adults to register in person with local police authorities. Such offenses include, for example, sexual assault and possession of child pornography. Alaska Stat. § 12.63.100(1)(B). Registrants must be photographed, provide fingerprints, and provide the following information: name, date of birth, address, place of employment, and information about the conviction (specifically the crime, date of conviction and place of conviction). Alaska Stat. § 12.63.010. Those convicted of "aggravated" sex offenses must register in person at their local police stations four times each year for life; those convicted of other sex offenses must register in person annually for fifteen years. Alaska Stat. § 12.63.020.
Other offenses include child kidnaping, felony sexual assaults, sexual abuse of a minor, incest, unlawful exploitation of a minor, promoting or forcing a minor to engage in prostitution, distribution of child pornography, felony indecent exposure, and misdemeanor indecent exposure where the victim is under 16 and the defendant has a prior conviction for certain offenses. Alaska Stat. § 12.63.100.
The Alaska statute, on its face, does not clearly specify that these registrations must be made in person at local police stations. However, the government represented at oral argument that periodic in-person registration at local police stations is required by the Act. When specifically asked whether registrants must "go to the police station" for their annual or quarterly registrations, the government answered "under the current law, yes."
Information collected under the Alaska Sex Offender Registration Act is forwarded to the Alaska Department of Public Safety, which maintains a central registry. Alaska Stat. § 18.65.087. The parties agree that the Department of Public Safety has published the collected information on its internet website, making it readily available to all persons world-wide. The information on the website, which can be searched by name, partial address, zip code or city, includes the offender's name, color photograph, physical description, street address, employer address and conviction information, all under the banner "Registered Sex Offender."
II. EX POST FACTO CLAIM
The Ex Post Facto Clause prohibits states from enacting any law that "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 391, 1 L.Ed. 648 (1798). There is no question that the Alaska statute, by its terms, applies to the plaintiffs even though their crimes were committed before its enactment. However, the question when considering whether a retroactively applicable statute is subject to the constraints of the Ex Post Facto Clause is not whether it "produces some ambiguous sort of `disadvantage,' . . . but . . . whether [it] . . . increases the penalty by which a crime is punishable." California Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The key issue in this case is whether or not the Act is punitive, because only punitive statutes implicate the Ex Post Facto Clause.
Whether a statute should be classified as imposing punishment involves a two-step inquiry. We must first consider whether, when enacting the Act, the Alaska legislature "indicated either expressly or impliedly a preference for one label or the other." United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). If we conclude that the legislature's intent was punitive, our inquiry is at an end. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). If we conclude that the legislature did not intend the statute to be considered punitive, or that its intent is ambiguous, then we must inquire whether the statute is "so punitive either in purpose or effect" that it should be considered to constitute punishment. Ward, 448 U.S. at 249, 100 S.Ct. 2636. This two-step inquiry is known as the "intent-effects test." Russell v. Gregoire, 124 F.3d 1079, 1086 (9th Cir. 1997).
The test is somewhat confusing, because the "effects" prong includes an exploration into both the effects of the statute and its actual purpose. The legislature's purpose is, of course, necessarily considered in the examination conducted under the first prong (the intent prong) of the test.
In other Ex Post Facto challenges to state sex offender registration and notification laws, some courts of appeals have analyzed separately the registration and notification provisions while others have looked to the statute as a whole. Compare Russell, 124 F.3d at 1087, 1089 (separately considering the registration and notification provisions); Doe v. Pataki, 120 F.3d 1263, 1276 (2d Cir. 1997) (same) with Cutshall v. Sundquist, 193 F.3d 466, 473-76 (6th Cir. 1999) (considering registration and notification provisions together). The Alaska legislature enacted the Alaska statute as a single piece of legislation, and the notification and registration provisions operate in tandem. Neither the structure of the statute nor the excerpts of the legislative debate included in the record indicate that the provisions were viewed as serving separate purposes. Nor does the state suggest on this appeal that the provisions should be treated separately for purposes of our constitutional analysis. Moreover, an Alaska intermediate appellate court recently considered the statute as a whole when deciding an Ex Post Facto challenge. See Patterson v. Alaska, 985 P.2d 1007, 1011-13 (Alaska Ct.App. 1999). After reviewing the structure of the statute and its legislative history, we agree with the Alaska court that the proper approach is to analyze the statute as a whole.
Patterson concluded that neither the intent nor the effects of the Alaska statute were punitive. Patterson, 985 P.2d at 1013. Determining "whether a particular [statute] is civil or criminal is a matter of statutory construction." Ward, 448 U.S. at 248, 100 S.Ct. 2636. While we regard as "authoritative" the construction of a statute rendered by the state's highest court, Russell, 124 F.3d at 1090, we are not obligated to adopt that court's legal conclusion with regard to whether a legislature's purpose in enacting a statute is to punish. Kansas v. Hendricks, 521 U.S. 346, 365, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). In other words, we defer to a state highest court's determination concerning what the statute means, but we determine independently whether that meaning renders a statute punitive or not. Of course, we are not obligated to accept the Patterson court's construction of the Alaska statute because Patterson is not a decision of the Alaska Supreme Court. While we find some of its analysis persuasive, we ultimately reach the opposite conclusion as to whether, for Ex Post Facto purposes, the statute should be considered punitive.
A. Intent of the Alaska Sex Offender Registration Act
To determine the legislature's intent when enacting the Alaska Sex Offender Registration Act, we consider the body's declared purpose, the structure of the statute, and its design. Russell, 124 F.3d at 1087. Section 1 of the Alaska statute states:
"The legislature finds that
(1) sex offenders pose a high risk of reoffending after release from custody;
(2) protecting the public from sex offenders is a primary governmental interest;
(3) the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety; and
(4) release of certain information about sex offenders to public agencies and the general public will assist in protecting public safety."
1994 Alaska Sess. Laws 41, § 1.
The court in Patterson held that these findings demonstrate that the legislature viewed the Act as a measure designed to accomplish a non-punitive purpose, protecting the public through the collection and release of information, and we agree. Patterson, 985 P.2d at 1011 (findings make clear that legislature viewed "recidivism of sex offenders [as] a problem," and sought to address the problem through "the release of certain information"). Furthermore, the circumstances in which the legislation was enacted — it was passed amid popular fear about the release of large numbers of sex offenders into the community as a means for members of the community to protect themselves — supports the conclusion that the legislature did not intend the Act to be punitive. In light of the legislative findings and history, we conclude that the legislature acted with a non-punitive intent.
The structure of the Act does not cause us to conclude otherwise, because it is remarkably similar to the Washington sex offender registration and notification statute that we found to be non-punitive in Russell (although the substance of these statutes is significantly different). Although the registration provision in the Alaska statute is codified in the state's criminal code, rather than in its civil code, see Alaska Stat. § 12.63.010 (part of Title 12 of the Alaska Code, labeled "Criminal Procedure"), such is also the case with respect to the Washington statute. See Wash. Rev. Code § 9A.44.130 (part of Title 9A of the Washington Revised Code, labeled "Washington Criminal Code").
In light of Russell and the Alaska Act's legislative findings, we conclude that the legislative intent of the Act is non-punitive. Thus, we now turn to the "effects" prong to determine whether, notwithstanding the legislative intent, the statute should be treated as punitive for Ex Post Facto Clause purposes.
B. The Alaska Statute's Punitive Effect
When considering a statute's effect, we rely on an analysis of seven factors set forth by the Supreme Court in Mendoza-Martinez. Russell, 124 F.3d at 1087 They are:
1) whether the sanction involves an affirmative disability or restraint;
2) whether it has historically been regarded as a punishment;
3) whether it comes into play only on a finding of scienter;
4) whether its operation will promote the traditional aims of punishment — retribution and deterrence;
5) whether the behavior to which it applies is already a crime;
6) whether an alternative purpose to which it may rationally be connected is assignable to it; and
7) whether it appears excessive in relation to the alternative purpose assigned.
We may "reject the legislature's manifest intent" and treat a statute as punitive "only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention." Hendricks, 521 U.S. at 361, 117 S.Ct. 2072 (internal quotations omitted); Russell, 124 F.3d at 1087. We applied these factors in Russell in order to determine whether Washington's narrowly drawn and strictly limited sex offender registration statute violated the Ex Post Facto Clause, and we held that it did not. Russell, 124 F.3d at 1089, 1093. Here, the application of the seven factors leads us to the conclusion that Alaska's statute, which is far broader and imposes far greater burdens on sex offenders than Washington's, is so punitive in its effect as to offend the Ex Post Facto Clause.
1. Affirmative disability or restraint
The Alaska Sex Offender Registration Act imposes an affirmative disability on the plaintiffs. First, its registration provisions impose a significant affirmative disability by subjecting offenders to onerous conditions that in some respects are similar to probation or supervised release. Like Washington's sex offender registration statute, Alaska's requires offenders being released from confinement to register. Alaska Code § 12.63.010(a); Russell, 124 F.3d at 1082. However, unlike the Washington statute, Alaska's requires sex offenders such as the plaintiffs to re-register at police stations four times each year every year of their lives. Alaska Code § 12.63.010(d). Moreover, in order to do so, they must appear in person at a police station on each occasion, and provide, under oath, a wide variety of personal information, including address, anticipated change of address, employer address, vehicle description, and information concerning mental health treatment for any "mental abnormality or personality disorder." § 12.63.010(b).
In Russell, we concluded that Washington's registration provisions did not impose an affirmative disability or restraint. Russell, 124 F.3d at 1088-89. However, as the state acknowledges, Alaska's registration requirement is vastly more burdensome than the one-time registration requirement at issue in Russell. We held in Russell that Washington's "simple registration" provision, involving a one-time only registration (except when changing one's address), does not work an affirmative disability or restraint. Russell, 124 F.3d at 1082, 1088. In part because Alaska's registration provision is far more onerous, we reach a different conclusion here.
Not only do the Alaska statute's registration provisions impose an affirmative disability, but its notification provisions do so as well. By posting the appellants' names, addresses, and employer addresses on the internet, the Act subjects them to community obloquy and scorn that damage them personally and professionally. For example, the record contains evidence that one sex offender subject to the Alaska statute suffered community hostility and damage to his business after printouts from the Alaska sex offender registration internet website were publicly distributed and posted on bulletin boards.
In reviewing a sex offender law that authorized public inspection of sex offender records at police departments and permitted newspapers or others to disseminate the information, the Kansas Supreme Court concluded that the law imposed a disability because "[t]he practical effect of such unrestricted dissemination could make it impossible for the offender to find housing or employment." Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024, 1041 (1996). Where the impact is substantially less severe, however, the disability is not such as to warrant a finding that the statute is punitive. Such was the conclusion in Cutshall, 193 F.3d at 471, where a Tennessee statute limited disclosure of information to the amount "deemed necessary . . . to protect the public concerning a specific sexual offender," and in Pataki, 120 F.3d at 1269-70, where a New York act permitted such disclosure only on the basis of an individualized assessment of the risk of recidivism. Alaska's system of posting all sex offenders' information on the internet is far closer to the statutory scheme in Myers and, in fact, is likely to have a far greater impact on offenders. Because the internet is much more accessible to the public than records at police departments, the obloquy and scorn noted in Myers are more certain to result.
A statute also may be considered non-punitive where the specific disability is narrow. In Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), the Supreme Court held that a sanction of "occupational debarment" from the banking industry for those found to have misappropriated bank funds is not an "affirmative disability or restraint" because the disability is severely limited. Hudson, 522 U.S. at 104, 118 S.Ct. 488. In contrast, in the present case, the procedures employed under the Alaska statute are likely to make the plaintiffs completely unemployable. Alaska publishes the names and addresses of the registrants' places of employment on its sex offender internet site, and makes it simple for users of the site to search for the presence of any sex offenders working at a particular place of employment. By doing so, it creates a substantial probability that registrants will not be able to find work, because employers will not want to risk loss of business when the public learns that they have hired sex offenders. This disability is far more substantial than the one at issue in Hudson, which merely involved debarment from a single profession. Indeed, the breadth of the impact of the Alaska statute provides strong evidence that the statute's effect is punitive. See Myers, 923 P.2d at 1041 (sex offender statute that permits public disclosure of offender's employment information imposes an affirmative disability).
The state argues that Russell compels the conclusion that the Alaska statute's notification provisions do not impose an affirmative disability. As noted earlier, however, Russell involved a statute with a far more limited notification provision. The Washington statute we considered in Russell authorizes release of information only when it has been determined that the specific offender poses a risk of reoffending, and even then, the information disclosed is much more limited than the information Alaska discloses. Russell, 124 F.3d at 1082. Furthermore, under the Washington act, disclosure is limited to a narrow geographic area within the state of Washington, whereas here the notification of a defendant's lurid past is world-wide. Id. Moreover, when considering whether Washington's limited notification provisions posed an affirmative disability, we "actively weigh[ed]" the harsh results of the community notification provisions, including "humiliation, ostracism, public opprobrium, and the loss of job opportunities," but decided that the disability was not "so egregious" as to prevent the court from concluding that the statute was regulatory. Russell, 124 F.3d at 1092.
In Russell, therefore, we did determine that the notification provisions imposed an affirmative disability. We made this clear by "actively weighing" the statute's consequences along with the other Mendoza-Martinez factors. We ultimately concluded, however, that the disability was insufficient to overcome the clear legislative intent that the statute not be punitive.
Considered as a whole, the Alaska statute's registration and notification provisions impose substantial disabilities on the plaintiffs. Both the registration and notification provisions are far more burdensome than the provisions we considered in Russell. When the applicable provisions of the Alaska statute are considered together, the first Mendoza-Martinez factor clearly favors treating the Act as punitive.
2. Historical treatment
Sex offender registration and notification statutes are of fairly recent origin. Other courts considering such statutes consider whether they are analogous to historical shaming punishments. In Russell, we concluded that the provisions of the Washington statute were not. Russell, 124 F.3d at 1092. We reach the same conclusion here. Accordingly, the second factor favors treating the statute as non-punitive.
The first sex offender community notification statute was enacted by Washington in 1990. Alan R. Kabat, Note, Scarlet Letter Sex Offender Databases and Community Notification: Sacrificing Personal Privacy for a Symbol's Sake, 35 Am.Crim. L.Rev. 333, 334-35 (1998). After the 1994 killing of Megan Kanka in New Jersey, such statutes became widespread. Id.
3. Finding of scienter
The third Mendoza-Martinez factor is whether the statute's provisions come into effect only upon a finding of scienter. Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554. A defendant must be convicted of a sex offense before the Alaska statute's provisions become applicable, and those offenses generally require a finding of scienter. However, some of the offenses that subject an offender to the Act's requirements are "strict liability" offenses that can be committed whether or not the defendant is aware of certain facts that make his conduct criminal. For example, conviction for sexual abuse of a minor under 13 years of age does not require any showing that the defendant knows that his victim is under that age. Alaska Stat. §§ 11.41.434; 11.41.445(b).
Our inquiry when considering this factor is whether the Act's requirements may be imposed only upon a finding a scienter. Hudson, 522 U.S. at 104, 118 S.Ct. 488. While the Alaska statute generally requires a finding of scienter, its provisions do not become applicable only in such circumstance. Accordingly, like the second Mendoza-Martinez factor, this factor supports the conclusion that the Act is not punitive.
4. Traditional aims of punishment
When a statute promotes the traditional aims of punishment — retribution and deterrence, its effect is more likely to be considered punitive. Id. This court has previously held that Washington's statute, which is substantially less onerous than Alaska's, "may implicate deterrence," Russell, 124 F.3d at 1091, and the Patterson court reached the same conclusion with regard to the Alaska statute. Patterson, 985 P.2d at 1012. Accordingly, we conclude that the Act may provide a measure of deterrence; the threat of being subjected to mandatory registration and, particularly, publicly branded a sex offender, may presumably deter some persons who might otherwise become offenders.
While the Alaska statute may have some deterrent effect, it even more directly serves the other traditional aim of punishment — retribution. It is primarily this objective that causes us to weigh the fourth factor on the side of finding the Act punitive. The Act's onerous registration obligations appear to be inherently retributive. The duty of sex offenders to report quarterly to their local police stations may be analogized to the duty imposed in a judgment of conviction on other defendants to report regularly to a probation officer or to comply with the conditions of supervised release. Such obligations are part of the punishment meted out through a defendant's criminal sentence. United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995).
Moreover, the duration of the Act's requirements provides additional support for the conclusion that retribution is an objective of the Act. For offenses that are not classified as aggravated, the Act requires registration for 15 years. Alaska Stat. § 12.63.020(a). However, for each year that an offender fails to comply with the registration requirements, the 15 year period is extended by an additional year. Alaska Stat. § 12.63.020(a)(2). The relationship between failing to renew the registration annually and the statute's non-punitive public safety objective — preventing recidivism — seems tenuous. On the other hand, if registration is punitive, requiring the offender actually to go to the police station and register 15 times (even if it takes more than 15 years when the offender skips some years) achieves a statutory purpose, because the penalty for the sex offense includes the requirement of annual in-person registration 15 separate times.
When an offender is no longer required to register, the state removes his name from the registry, and therefore his information is no longer disclosed to the public. Alaska Stat. § 18.65.087(d)(4).
Finally, that the length of the reporting requirement appears to be measured by the extent of the wrongdoing, not by the extent of the risk posed, indicates that the requirement is retributive. Those convicted of "aggravated" sex offenses must register four times each year for the rest of their lives, while those convicted of other sex offenses need only register annually for a period of 15 years. See Alaska Stat. § 12.63.020(a). However, it appears that the classification by the Alaska Sex Offender Registration Act of certain offenses as "aggravated" and others as not "aggravated" relates to the gravity of the wrongdoing, not the risk of recidivism posed by the wrongdoers. For example, the difference between first degree sexual abuse of a minor, which is an aggravated sexual offense, and second degree sexual abuse of a minor, which is not considered aggravated, is that the former prohibits someone over 16 from sexually penetrating a child under 13 while the latter prohibits someone over 16 from sexually penetrating a child between the ages of 13 and 15. See Alaska Stat. §§ 11.41.434; 11.41.436. This difference appears clearly to be related to the degree of wrongdoing, not the risk of recidivism.
In sum, the Act furthers the fundamental aims of punishment — retribution and deterrence. While the Act's requirements are not labeled as punishment, the nature and extent of their duration show that they serve not only as a deterrent but as retribution for the commission of sex offenses. Therefore, this Mendoza-Martinez factor strongly supports the conclusion that the Act's effect is punitive.
5. Applies to criminal behavior
That a statute applies only to behavior that is already criminal is an additional factor supporting the conclusion that its effect is punitive. Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554. As the state concedes, the Alaska statute applies only to those "convicted" of specified offenses. Alaska Stat. § 12.63.100(5).
In Russell, the fact that the statute applied to Washington sex offenders who were not found guilty of a crime as well as to those who were convicted was central to our conclusion that the Washington act was not punitive. 124 F.3d at 1091. Washington's statute specifically subjects sex offenders incompetent to stand trial and persons civilly committed as sexual psychopaths to its registration and notification requirements. Id. When considering Utah's sex offender registration and notification law, the Tenth Circuit concluded that the "criminal behavior" factor favored classification of the statute as non-punitive because it applied to those found not guilty on the ground of "mental incapacity." Femedeer v. Haun, 227 F.3d 1244, 1252 n. 3 (10th Cir. 2000).
In contrast to Washington's and Utah's statute, Alaska's applies only to those found "guilty," including those found "guilty but mentally ill." Alaska Stat. § 12.63.100(3). It does not cover those found "not guilty by reason of insanity," or otherwise not convicted of a crime or those civilly committed. Id. Unlike other states' sex offender registration laws, the Alaska statute's harsh requirements can be imposed only on individuals who have suffered an actual criminal conviction in a court of law. Thus, this factor also provides support for the conclusion that the Act's effect is punitive.
In Alaska, one who does not understand "the basic nature and quality of his or her conduct" is considered "not guilty by reason of insanity," while one who does not "appreciate the wrongfulness of his or her conduct" is considered "guilty but mentally ill." Alaska v. Patterson, 740 P.2d 944, 946-49 (Alaska 1987).
6. Non-punitive purpose
The appellants concede, as they must, that there is a non-punitive purpose that can rationally be connected to the Act. That purpose, of course, is public safety, which is advanced by alerting the public to the risk of sex offenders in their communities. The existence of a non-punitive purpose for the Alaska statute, protecting public safety, unquestionably provides support, indeed the principal support, for the view that the statute is not punitive for Ex Post Facto Clause purposes.
The final, and, in this case, a highly significant, factor in the Mendoza-Martinez analysis is whether the Alaska Sex Offender Registration Act "appears excessive in relation to the alternative purpose assigned": public safety. Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554. The appellants claim that the Act is excessive in relation to its public safety purpose because it is sweeping and overbroad in several respects. They emphasize that the scope of the statute is not limited to those who the state determines pose a future risk to the community: they point out specifically that, once convicted, it does not matter whether a defendant can prove that he has been rehabilitated and that he poses no threat of future criminal conduct. Under the statute, a judicial determination of rehabilitation (such as made in Doe I's case) is irrelevant, and even law enforcement authorities are powerless to limit the widespread public distribution of the injurious, and possibly outdated, information that the statute provides for.
The statute at issue in Russell was far more limited than the Alaska statute in numerous respects. Most important to this part of our analysis, it only authorized release of "relevant and necessary information" concerning certain sex offenders. Russell, 124 F.3d at 1082. In Washington, information about sex offenders was disseminated only if the authorities determined, on an individual basis, that the offender posed a risk of recidivism. Id. (citing Washington v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1070 (1994) (en banc) (in many cases, the legislature intended that a sex offender's information would not be released to the public)). Furthermore, in Russell, we found it significant that Washington's statute authorized dissemination of information about any particular sex offender only within a "narrow geographic area." Russell, 124 F.3d. at 1082. In contrast, in Alaska, information as to all sex offenders is made available world-wide on the internet without any restriction and without regard to whether the individual poses any future risk. Broadcasting the information about all past sex offenders on the internet does not in any way limit its dissemination to those to whom the particular offender may be of concern.
We note also that it does not appear that the legislature, when enacting the Alaska Sex Offender Registration Act in response to concerns about child sexual abuse, made any attempt to determine which of the offenses it classified as "sex offenses" were likely to involve recidivism (against either adults or children) and thus which should be included in order to serve the statute's non-punitive purpose — public safety. Rates of recidivism vary considerably depending on the specific sex offense committed. See Jane A. Small, Who Are the People in Your Neighborhood? Due Process, Public Protection, and the Sex Offender Notification Laws, 74 N.Y.U. L.Rev. 1451, 1458 (1999) (pedophiles, for example, have much higher rates of recidivism than other sex offenders).
With only one exception, every sex offender registration and notification law that has been upheld by a federal court of appeals has tailored the provisions of the statute to the risk posed by the offender. See Cutshall v. Sundquist, 193 F.3d 466, 474 (6th Cir. 1999) (Tennessee statute); Roe v. Office of Adult Probation, 125 F.3d 47, 54 (2d Cir. 1997) (Connecticut statute); E.B. v. Verniero, 119 F.3d 1077, 1098 (3d Cir. 1997) (New Jersey statute); Doe v. Pataki, 120 F.3d 1263, 1269-70 (2d Cir. 1997) (New York statute). For example, with regard to the Connecticut statute, the Second Circuit concluded that it was not excessive because offenders who were convicted before the statute's enactment are subject to the statute's notification provisions only if, based on an "individualized clinical assessment," they are found to pose a "high risk" of recidivism. Roe, 125 F.3d at 54. For offenders convicted after the statute's enactment, the court pointed out, disclosure is limited to specified members of the community, including the victim and his family, the police, the offender's immediate family, other occupants of the offender's residence, and treatment providers, unless the individual offender is determined to be "high risk." Id. at 50. Similarly, the Third Circuit upheld the New Jersey statute after finding that New Jersey classifies offenders by risk category, provides no public disclosure for those who pose the least risk (45 percent of offenders) and widespread disclosure only for those who pose the greatest risk (5 percent of offenders). E.B., 119 F.3d at 1098.
The only exception to this rule is found in an opinion that was filed after oral argument in this case, Femedeer v. Haun, 227 F.3d 1244 (10th Cir. 2000). That case concerned the Utah sex offender registration and notification statute, which, like the Alaska statute, makes the state's entire sex offender registry accessible on the internet. Id. at 1247-48. Unlike the Alaska statute, however, the Utah database does not include employer names and addresses, and thus does not place the sex offenders' current employment in direct jeopardy. See id. at 1247 (reciting information contained in Utah database). In any event, we respectfully disagree with the conclusions espoused by the Tenth Circuit in Femedeer.
In contrast, as we have noted, the Kansas Supreme Court considered a sex offender registration and notification statute that, like the Alaska statute, allowed unrestricted access to the registration information regardless of risk. Kansas v. Myers, 260 Kan. 669, 923 P.2d 1024, 1041 (1996). It concluded that the statute had a punitive effect, and therefore was an unconstitutional ex post facto law, because it was "excessive and beyond that necessary to promote public safety." Id. at 1043. Surveying other states' statutes, the Kansas Supreme Court concluded that almost every other state limited access by means such as: 1) basing the type of community notification on the specific risk level assigned to the individual offender (New Jersey, New York); 2) only releasing information to those living in close proximity to the offender (Louisiana); and 3) providing information only to those inquiring about a specific person (Iowa, North Carolina). Id. at 1029, 1038. It based its holding that Kansas's broad notification provisions violated the Ex Post Facto Clause on its conclusion that "of the sex offender registration laws that have successfully overcome ex post facto challenges, none have [sic] provided for unlimited public access to the registered sex offender information." Id. at 1036.
Like the statute at issue in Myers, Alaska's statute is exceedingly broad. The unlimited breadth of the Alaska statute weighs strongly in favor of a determination that its effect is punitive. Indeed, the punitive effect caused by the excessiveness of the statute's provisions in relation to its non-punitive purpose is exemplified by John Doe I's case. Convicted of sexual abuse of his minor daughter, Doe I was successfully rehabilitated. After his release from prison, a state court determined that he was not a pedophile, and that he posed a very low risk of reoffending. On that basis, the court returned his minor daughter to his custody. Nevertheless, under the Alaska statute's registration provisions, Doe I would be forced to submit to in-person registration at his local police department four times a year, every year, and, under its notification provisions, he would be compelled forever to suffer the unremitting social obloquy and ostracism that would accompany his being publicly labeled a sex offender on Alaska's world-wide internet website. Presumably, in any state that does not provide for unlimited public disclosure of sex offender information in all cases in which a defendant has ever been convicted of a sex offense, the record of John Doe I's past incest conviction would not be disseminated by state officials to the world at large for the rest of his life.
We conclude that the effects of the Alaska Sex Offender Registration Act are unquestionably punitive. The impact upon the lives of those affected by the Act's requirements is drastic indeed. The Act imposes more substantial burdens on those subject to its registration and notification requirements than does any legislation enacted by any other state, the provisions of which have been considered by a federal court of appeals.
In sum, the Mendoza-Martinez test leads us to hold that the effects of the specific provisions of the Alaska Act provide the "clearest proof" that, notwithstanding the legislature's non-punitive intent, the statute must be classified as punitive for Ex Post Facto Clause purposes. Hendricks, 521 U.S. at 361, 117 S.Ct. 2072. Four of the seven factors favor this result. Two factors, particularly, demonstrate that the effect of this particular statute is to increase the penalty the law provided at the time Doe I and Doe II's offenses were committed. First, there is the substantial disability imposed by the Act. The registration provisions, which require in-person registration at a local police station where registrants must provide detailed information four times each year for life in the case of some defendants, and annually for 15 years in the case of others, are extremely burdensome. This disability is exacerbated by the public notification provisions that plaintiffs' uncontradicted evidence demonstrates exposes all registrants to world-wide obloquy and ostracism. Second, unlike the sex offender registration and notification statutes upheld by the Second, Third and Sixth Circuits, as well as by this Circuit in Russell, the Alaska statute is excessive in relation to its non-punitive purpose. An offender cannot escape the Act's grasp no matter how clearly he may demonstrate that he poses no future risk to anyone, and no matter how final the judicial determination that he has been successfully rehabilitated; in short, under the Alaska statute, the requirements relating to disclosure of a past offense are not related to the risk posed. Furthermore, that the Act applies only to offenders who have been convicted of committing a crime and that it serves retributive and deterrent ends provides additional support for our conclusion that the Alaska statute is punitive.
We note that our conclusion is not based on a simple equation in which each factor is given equal weight. Rather, we consider the importance of each factor in relation to the legislative scheme we are examining.
Three factors suggest that the Act is not punitive. The first is the fact that sex offender registration and notification provisions have not historically been regarded as punishment. However, the fact that the Alaska statute is so much more sweeping in its scope than comparable statutes in other states leads us to limit the weight we place on this Mendoza-Martinez factor. The second is that it is not imposed only upon a finding of scienter. The relevance of this factor is to assist in the determination of whether the conduct giving rise to the sanction is the sort that traditionally subjects someone to punishment, because in general, mens rea is an element of a crime. In this case, however, given that conviction of a serious criminal offense is a prerequisite to the application of the statute, we do not believe that this factor provides much support for the conclusion that the Act is not punitive. The final factor is the fact that the Act has a non-punitive purpose: protecting public safety. Here, we conclude that the non-punitive purpose, while of unquestioned importance, does not serve to render a statute that is so broad and sweeping non-punitive. Otherwise, we would not apply a two-part "intent-effects" test, the second part of which we reach only when the statute's purpose is non-punitive.
No one Mendoza-Martinez factor is determinative, and excessiveness, standing alone, would not be dispositive under the Mendoza-Martinez test. Hudson v. United States, 522 U.S. 93, 101, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). Still, we place substantial weight on the fact that the Act is far more sweeping than necessary to serve the purpose of promoting public safety. This is so not only with respect to the undifferentiated scope of the Act but also with respect to the severity of the disabilities it imposes. Accordingly, we conclude that, weighing all of the Mendoza-Martinez factors together, the effects of the Act provide the clearest proof that it is punitive.
We recognize that applying a multi-factor test is frequently not an entirely satisfactory method of resolving legal issues. Sometimes, however, it is the best approach available to courts. In any event, the Supreme Court has applied this approach in analogous cases, see, e.g., Hudson, 522 U.S. at 99, 118 S.Ct. 488, and we have held that it is applicable to statutes such as the one before us. Russell, 124 F.3d at 1086-87.
Because the Alaska Sex Offender Registration Act increases the punishment for sex offenses, the Ex Post Facto Clause limits its application to those sex offenders whose crimes were committed after its enactment. California Dep't of Corr. v. Morales, 514 U.S. 499, 504-05, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Doe I was convicted in 1985, and Doe II was convicted in 1984. The Alaska legislature enacted the Act in 1994. Therefore, the Alaska statute's application to the appellants violates the Ex Post Facto Clause.
III. APPELLANTS' OTHER CLAIMS
In addition to their Ex Post Facto Clause argument, plaintiffs claim that the statute violates their procedural and substantive Due Process Clause rights, as well as their federal constitutional privacy rights. Because we conclude that the Ex Post Facto Clause bars the application of the statute to Doe I or Doe II, we need not consider these arguments. Our failure to address them should not be taken, however, as an indication that we do not believe that they have merit.
In the complaint, Jane Doe I claims only that her privacy right, and not her Ex Post Facto Clause right, has been violated. Because we conclude that Jane Doe I's husband, John Doe I, is not subject to the Alaska statute, Jane Doe I will receive all of the relief that she seeks in her complaint, and therefore we need not decide whether the Act violates her privacy right.
The state officials argue that our opinion in Russell forecloses the appellants' claims, because in that case we held that the Washington sex offender registration and notification statute does not implicate registrants' federal privacy rights. See Russell, 124 F.3d at 1093-94. However, in Russell, we made clear that the plaintiffs "fail to explain precisely how the Act violates [their privacy rights] beyond collating and releasing information." Id. at 1093. We then rejected their privacy argument after explaining that the mere "collection and dissemination of information" does not violate a privacy interest or amount to a deprivation of liberty. Id. at 1094. In this case, plaintiffs allege more that the mere collection and release of information — they assert that the state requires them to appear four times each year at local police stations to answer a host of questions, and labels them "sex offenders" on its internet website, which is accessible world-wide. Furthermore, in contrast to the Washington statute, Alaska's brands plaintiffs sex offenders without any attempt to classify them by risk posed, or to provide them with an opportunity to prove that they have been rehabilitated. While we do not decide whether the Alaska statute infringes on the appellants' due process rights, we doubt that Russell fairly could be read to stand for the exceedingly broad proposition urged by the state.
We conclude that the Alaska Sex Offender Registration Act violates the Ex Post Facto Clause. We therefore REVERSE the district court's orders granting summary judgment for the state officials, and REMAND for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.