|SMITH V. DOE (01-729) 538 U.S. 84 (2003)
259 F.3d 979, reversed and remanded.
[ Kennedy ]
[ Thomas ]
[ Souter ]
[ Opinion of Stevens ]
[ Ginsburg ]
DELBERT W. SMITH and BRUCE M. BOTELHO,
PETITIONERS v. JOHN DOE I et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 5, 2003]
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.
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 Megans 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 victims 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 minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megans 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, drivers 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, drivers license number, anticipated change of address, and whether the offender has had medical treatment afterwards, is kept confidential. §§12.63.010(b), 18.65.087(b). The following information is made available to the public: the sex offenders or child kidnappers 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.
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 regulatory scheme; but, in disagreement with the District Court, it held the effects of the Act were punitive despite the legislatures intent. In consequence, it held the Act violates the Ex Post Facto Clause. Doe v. Otte, 259 F.3d 979 (2001). We granted certiorari. 534 U.S. 1126 (2002).
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
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 statutes text and its structure to determine the legislative objective. Flemming v. Nestor, 363 U.S. 603, 617 (1960). A conclusion that the legislature 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 post-incarceration 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 laws 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 States power to protect the health and safety of its citizens, it will be considered as evidencing an intent to exercise that 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
Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislatures 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 States 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 States objective to create a civil proceeding is evidenced by its placement of the Act within the [States] probate code, instead of the criminal code (citations omitted)). The Acts registration provisions, however, are codified in the States 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 364365. 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.
The same rationale applies here. Title 12 of Alaskas Code of Criminal Procedure (where the Acts 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 States 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 Acts 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). 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).
The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences 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 offenders 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 Acts 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.
In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168169 (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 Eight Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168169, and nn. 2228. 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, supra, 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 Actand, in particular, its notification provisionsresemble shaming punishments of the colonial period. Brief for Respondents 3334 (citing A. Earle, Curious Punishments of Bygone Days 12 (1896)).
Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required to stand in public with signs cataloguing their offenses. Hirsh, From Pillory to Penitentiary: The Rise of Criminal 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. Massaro, supra, at 1913; see also Friedman, supra, at 40; Hirsh, 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 3031 (2000). Respondents contend that Alaskas 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, 3536, 5152; Massaro, supra, at 19121924; Semmes, supra, at 3940; Blomberg & Lucken, supra, at 3031. By contrast, the stigma of Alaskas Megans 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 contrary, 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 States 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 Safetys 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 Alaskas citizenry.
We next consider whether the Act subjects respondents to an affirmative disability or restraint. Mendoza-Martinez, 372 U.S., at 168. Here, we inquire how the effects of the 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 Acts 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 Alaskas 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 individuals conviction was already in the public domain.
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 Acts 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 States 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. 2628.
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 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 individuals 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 Governments ability to engage in effective regulation. Hudson, 522 U.S., 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 Acts 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 Acts rational connection to a nonpunitive purpose is a [m]ost significant factor in our determination that the statutes effects are not punitive. Ursery, supra, at 290. As the Court of Appeals acknowledged, the Act has a legitimate nonpunitive purpose of public safety, which is advanced by alerting the public to the risk of sex offenders in their community. 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 Acts 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 991992. Neither argument is persuasive.
Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislatures 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 consequences. 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 criminal law 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 States 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 States objective in Hendricks was involuntary (and potentially indefinite) confinement of particularly dangerous individuals. 521 U.S., at 357358, 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. R. Prentky, R. Knight, and A. Lee, U.S. Dept. of Justice, National Institute 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 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 Courts 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 factorswhether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crimeare 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 Acts effects leads to the determination that respondents cannot show, much less by the clearest proof, that the effects of the law negate Alaskas intention to establish a civil regulatory scheme. The Act is nonpunitive, 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.