Michael A. McGuire v. Steven T. Marshall

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 15-10958

____________________

MICHAEL A. MCGUIRE,

Plaintiff-Appellant

Cross Appellee,

versus

STEVEN T. MARSHALL,

DERRICK CUNNINGHAM,

JOHN RICHARDSON,

Defendants-Appellees

Cross Appellants,

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2 Opinion of the Court 15-10958

CITY OF MONTGOMERY,

et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:11-cv-01027-WKW-CSC

____________________

∗

Before JILL PRYOR, ED CARNES, and RIPPLE, Circuit Judges.

PER CURIAM:

Plaintiff Michael McGuire is required to register as a sex

offender under the Alabama Sex Offender Registration and

Community Notification Act (“ASORCNA” or the “Act”), Ala.

Code § 15-20A-1 et seq. For as long as he lives in Alabama, Mr.

McGuire must report in person each quarter to law enforcement.

ASORCNA also subjects individuals, like Mr. McGuire, who are

required to register as sex offenders (“registrants”) to a variety of

other restrictions. A registrant generally cannot live or work within

∗

Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh

Circuit, sitting by designation.

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2,000 feet of a school or childcare center. 1 A registrant who is

homeless must report in person each week to provide law

enforcement with updated information. And a registrant must

notify law enforcement before traveling away from his residence

for three or more consecutive days. In addition, when a registrant

moves to a new home, the Act requires law enforcement to mail

flyers to the registrant’s neighbors informing them of the

registrant’s status as a sex offender.

In this lawsuit, Mr. McGuire sued the Alabama Attorney

General and others, claiming that some provisions of ASORCNA

impose retroactive punishment in violation of the Constitution’s

Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. After a bench

trial, the district court entered judgment against Mr. McGuire,

concluding that the retroactive application of these provisions did

not amount to punishment. After careful review, we agree with the

district court. Accordingly, we affirm in part and vacate and

remand in part. 2

In Part I, we discuss the factual background and procedural

history of Mr. McGuire’s challenge to ASORCNA. In Part II, we

walk through ASORCNA’s relevant provisions. In Part III, we

identify the applicable standard of review. In Part IV, we address

1 ASORCNA includes some exceptions to the employment and residency

restrictions. See infra n.12.

2

We vacate and remand in part because some of Mr. McGuire’s challenges are

now moot. See infra Section IV.

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mootness. In Part V, we set forth the “intent-effects” framework

used to determine whether the Ex Post Facto Clause prohibits a

law’s retroactive application. In Part VI, we apply this framework

to analyze whether the Ex Post Facto Clause bars the retroactive

application of the challenged provisions.

I. FACTUAL BACKGROUND

A. Factual History

In 1986, Michael McGuire was convicted in Colorado of: (1)

first-degree sexual assault (rape) of his girlfriend “through the

actual application of physical force and physical violence” using a

knife “to cause submission”; (2) second-degree assault by causing

and attempting to cause bodily injury “by means of a deadly

weapon, to-wit: a knife and wine bottle”; and (3) menacing by

placing another “in fear of imminent serious bodily injury.” At the

time of the crime, both Mr. McGuire and his girlfriend were 30

years old. Mr. McGuire served three years in prison and completed

one year of parole. After his release from prison, Mr. McGuire

spent much of the next 20 years working as a hair stylist and jazz

musician in the Washington, D.C. area. During that time, he met

a woman with whom he entered a common-law marriage in 2001.

In 2010, Mr. McGuire and his wife decided to move to

Montgomery, Alabama, to live with and assist his elderly mother.

Upon arriving in Montgomery, Mr. McGuire registered as a sex

offender. He learned that he could not live with his mother because

her home was too close to a childcare center.

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Mr. McGuire looked for a compliant home. He asked local

law enforcement about the suitability of dozens of homes for rent

but was told that ASORCNA prevented him from living at any of

those addresses. He and his wife stayed at a motel until their money

ran out. The couple briefly stayed with Mr. McGuire’s brother. But

when his brother’s minor children returned from a vacation, Mr.

McGuire had to move out because ASORCNA prevented him from

staying overnight with minors present. Unable to find housing, Mr.

McGuire began living beneath an interstate overpass. He spent his

days at the home where his wife lived and his nights underneath

the interstate. Later he did find compliant housing. See infra n.20.

Upon returning to Montgomery, Mr. McGuire also faced

difficulties finding a job. The district court found that ASORCNA’s

employment restrictions prevented him from accepting or

applying for a number of jobs, including music-related

engagements. The court noted that he occasionally performed as a

musician at a venue in Montgomery that is more than 2,000 feet

from a school or childcare center.

Before filing this lawsuit, Mr. McGuire began receiving

Social Security disability benefit payments and has continued to

receive them since then. He testified that he started receiving those

disability benefits after he had confined himself to his house for

four years due to agoraphobia and after he had what he describes

as a “psychotic break” and “was diagnosed as schizophrenic.” He

also receives non-service-related benefit payments from the

Veterans Administration for the same mental disabilities.

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When Mr. McGuire was asked during the bench trial if he

was “completely unable to work,” he testified: “I can’t really

answer that question because I –– I don’t –– I haven’t been in a

work environment for a while, so I don’t know what my reactions

would be, due to my schizophrenia. I don’t know if I could –– if I

could function correctly on a job, but I’m willing to find out.” 3

3 Federal regulations permit the payment of social security disability benefits

only when a person’s disabilities render him unable to perform “any

substantial gainful activity.” 20 C.F.R. § 404.1505(a); see also id. (explaining

that a person is disabled when he has an impairment that meets or equals “the

listing for a finding of disability”); 20 C.F.R., pt. 404, subpt. P, app. 1, pt. A2,

§§ 12.03 (listing schizophrenia as a qualifying disability), 12.06 (listing

agoraphobia as a qualifying disability). “The regulations define ‘substantial

gainful activity’ as work that involves significant mental and physical activities

and that is the kind of work that is usually done for pay or profit.” Johnson v.

Sullivan, 929 F.2d 596, 597 (11th Cir. 1991) (citing 20 C.F.R. § 404.1572). In

determining whether work is substantial and gainful, a variety of factors are

considered, such as “the time spent in the work; quality of the performance;

whether the worker is self-employed; the need for special conditions or

supervision; use of experience, skills and responsibilities; and whether the

worker contributes substantially to the operation of the business.” Id. (citing

20 C.F.R. § 404.1573); see also 20 C.F.R. § 404.1574(b) (an employed person

earning more than a certain monthly income is generally considered to be

engaging in substantial gainful activity). The Social Security Administration’s

and the Veteran Administration’s determinations that Mr. McGuire was

disabled because of his mental health conditions are not necessarily

inconsistent with his performing either occasional work as a musician (as he,

in fact, did) or limited part-time work (as he testified that he wanted to do).

See Johnson, 929 F.2d at 597; U.S. Dep’t of Veterans Affs., Individual

Unemployability Fact Sheet (2018),

https://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/IU.p

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During the time that he was homeless, Mr. McGuire had to

register in person each week. He was required to report in person

each week to both the Montgomery County Sheriff’s Office and

the Montgomery City Police Department.4

B. Procedural Background

Mr. McGuire filed this lawsuit naming the Attorney General

of Alabama as defendant. 5 As relevant to this appeal, he challenged

portions of ASORCNA as unconstitutional ex post facto laws.

After a bench trial, the district court entered detailed

findings of fact and conclusions of law. In the findings of fact, the

court described the difficulties that Mr. McGuire faced in trying to

find housing and work outside of ASORCNA’s exclusion zones. It

also addressed the effect the residency and employment

restrictions had on other registrants in Montgomery. The court

found that these two restrictions made approximately 80 percent

of the City of Montgomery’s housing stock and 85 percent of its

df (stating that a veteran may receive disability benefits at a 100% rate when

he is unable to “maintain[] substantial gainful employment”).

4Since that time, ASORCNA has been amended, and homeless registrants are

no longer subject to dual reporting requirements with the county and the city.

See 2015 Ala. Laws 463; Ala. Code § 15-20A-12(b).

5 Mr. McGuire also named as defendants the City of Montgomery,

Montgomery’s Chief of Police, Montgomery’s Mayor, Montgomery County’s

Sheriff, and the Director of the Alabama Department of Public Safety. For

convenience, in discussing the defendants we refer only to the Attorney

General, who represents the positions of all the defendants.

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jobs off limits to registrants. But many registrants were able to find

housing and jobs in Montgomery nonetheless. Of the 430

registrants who lived or worked in the city, the court found only

three were homeless.6 And approximately 50 percent of these

registrants had jobs. Although this meant that roughly half of the

Montgomery registrants lacked jobs, the court noted that this

number included some registrants who were not actively seeking

employment. 7

6 The record also contains evidence about the number of homeless registrants

in Montgomery County, which encompasses the City of Montgomery.

Looking at those registrants who were registered with the County only, the

district court found that there were about 70 additional registrants, none of

whom was homeless. Considering the total number of registrants in both the

city and the remainder of the county, only three of 500, or six-tenths of one

percent of the registrants, were homeless.

7 The court made no findings of fact about the effect of the residency and

employment restrictions on registrants in communities outside of

Montgomery County. The record contains limited evidence about that. One

of Mr. McGuire’s experts opined that the residency and employment

restrictions likely would have a similar effect in Alabama’s other largest

cities—Birmingham, Hoover, Huntsville, Mobile, and Tuscaloosa. The expert

explained that there was a direct correlation between a city’s population

density and the proportion of the city that was covered by exclusion zones.

Because these other cities had similar population densities to Montgomery, he

expected that the residency and employment restrictions would impact

registrants in those communities similarly. Mr. McGuire offered no other

evidence addressing the effect of the residency and employment restrictions

on registrants living in any other part of Alabama, even though ASORCNA

applies statewide to the 577 cities, towns, and Census Designated Places

(CDPs) in Alabama and the 66 counties other than Montgomery. Instead, he

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The court’s conclusions of law addressed the merits of Mr.

McGuire’s ex post facto claims. The court explained that to prevail

Mr. McGuire had to establish either that the legislature intended

ASORCNA to impose punishment or that the challenged

restrictions were sufficiently punitive in purpose or effect to

overcome the legislature’s nonpunitive intent. The court found

that in enacting ASORCNA the Alabama legislature expressly

intended to create a civil regulatory scheme, not to impose

punishment. For most of the challenged restrictions, the district

court concluded that Mr. McGuire failed to carry his burden of

demonstrating that the restrictions were so punitive in purpose or

effect that the legislature’s nonpunitive intent was overridden.

There were two exceptions: ASORCNA’s dual reporting

provisions, which required homeless registrants living in cities to

report to both municipal and county law enforcement, and its

travel permit requirement, which mandated that registrants living

in cities obtain permission from both municipal and county law

enforcement before traveling outside the area. The court

determined that these two restrictions were so punitive in purpose

or effect that the legislature’s stated intent to create a civil

regulation was negated. The district court declared the retroactive

application of these two provisions unenforceable under the Ex

Post Facto Clause.

presented evidence about only a single city where half of the registrants have

jobs and more than 99 percent of them have housing.

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Both Mr. McGuire and the Attorney General appealed parts

of the district court’s judgment. While this appeal was pending, the

Alabama legislature amended ASORCNA. It removed the travel

permit requirement and clarified that registrants simply needed to

notify law enforcement before traveling. See 2017 Ala. Laws 414. It

also modified the dual reporting requirements. Registrants who

lived in cities no longer needed to report to both city and county

law enforcement officers if they were homeless or planned to

travel. See 2015 Ala. Laws 463.

In addition, the State changed how it implemented

ASORCNA’s requirement that a registrant carry a driver’s license

or state-issued identification card reflecting his status as a sex

offender. At the time the district court ruled, the Alabama Law

Enforcement Agency (“ALEA”) implemented this requirement by

issuing to registrants driver’s licenses or identification cards with

the label “CRIMINAL SEX OFFENDER” appearing in red letters

on the face of the license or card. In a different lawsuit, a group of

registrants challenged the labeling requirement under the First

Amendment. The district court in that case declared that the

identification requirement as implemented by ALEA was

unconstitutional. See Doe v. Marshall, 367 F. Supp. 3d 1310, 1339

(M.D. Ala. 2019). After that ruling, ALEA changed the designation

it used on licenses and identification cards by replacing the words

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“CRIMINAL SEX OFFENDER” with a code. Since then, ALEA has

issued to registrants new driver’s licenses and identification cards. 8

II. ASORCNA’S REGULATION OF SEX OFFENDERS

We now discuss the relevant restrictions that ASORCNA in

its current form imposes on sex offenders in Alabama. 9 These

measures include: requiring in-person quarterly registration;

providing direct notification to the public when a registrant lives

nearby; barring registrants from living, working, or volunteering

within 2,000 feet of schools or childcare centers; requiring

homeless registrants10 to report to law enforcement once a week;

and compelling registrants to notify law enforcement before

traveling.

8We take judicial notice of the district court’s order and judgment in Doe v.

Marshall as well as ALEA’s change in policy. See Cunningham v. Dist. Att’y’s

Off. for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010); United States v.

Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (noting that we may take judicial

notice of district courts’ records).

9When a challenged statute has been amended, we “review the judgment of

the district court in light of the law as it now stands.” Naturist Soc’y, Inc. v.

Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (alteration adopted) (internal

quotation marks omitted).

10ASORCNA defines “homeless” as “[t]he state of lacking a fixed residence.”

Ala. Code § 15-20A-4(7). Applying the statutory language, we use the term to

refer to registrants who lack a fixed residence.

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A. Registration and Direct Community Notification

ASORCNA requires adult sex offenders, 11 individuals who

were age 18 or older when they committed a crime defined under

Alabama law as a sex offense, to register with law enforcement.

Ala. Code §§ 15-20A-4(1), 15-20A-10. Adult sex offenders are

subject to ASORCNA for life. 12 Id. § 15-20A-3(b). The Act went into

effect on July 1, 2011, 2011 Ala. Laws 640 § 52, but its provisions

apply to persons convicted prior to this effective date. See Ala.

Code § 15-20A-3(a) (explaining that ASORCNA applies to all “adult

sex offender[s] . . . without regard to when his or her crime or

11Alabama imposes a separate set of restrictions on individuals who were not

yet 18 at the time of their sex offense. See Ala. Code §§ 15-20A-4(11), 15-20A-

26 to -34. Because Mr. McGuire committed his offense as an adult, we have no

occasion to address the restrictions that Alabama imposes on juvenile sex

offenders.

12 Some classes of registrants may be excused from ASORCNA’s restrictions.

Under the so-called “Romeo and Juliet” exception, a state court may excuse

an individual convicted of a sex offense from complying with ASORCNA if the

court finds that the sex offense did not involve force and was a crime only

because of the victim’s age, the victim was at least 13 years old at the time of

the offense, and the registrant was less than five years older than the victim.

Ala. Code § 15-20A-24(b), (i). Alabama also allows registrants to petition for

relief on a number of other grounds: relief from the employment restriction if

the offender was not convicted of certain serious sex crimes and poses little

risk of committing a future sex crime; relief from the residency restriction if

the offender is seriously ill or disabled; and relief from a registration period of

life for juvenile offenders. See id. §§ 15-20A-23, 15-20A-25, 15-20A-34.

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crimes were committed or his or her duty to register arose”). Thus,

it has retroactive application for those persons.

ASORCNA requires registrants to report in person to law

enforcement on a quarterly basis. Id. § 15-20A-10(f). A registrant,

like Mr. McGuire, who lives in a city has a dual reporting

requirement, meaning he13 must register each quarter both with

his county sheriff and with his municipality’s chief of police. See id.

§§ 15-20A-4(12), 15-20A-10(f). Each time a registrant reports he

must provide, among other things, information about where he is

living, working, or attending school.14 Id. § 15-20A-7(a). He also

must notify law enforcement when his registration information

changes. Id. § 15-20A-10(e)(1). A person who knowingly fails to

register or otherwise knowingly violates the reporting requirement

may be imprisoned for up to 10 years. Id. §§ 13A-5-6(a)(3), 15-20A-

7(f), 15-20A-10(j).

The Alabama legislature imposed the reporting requirement

to promote public safety. It explained that reporting creates

“constant contact between sex offenders and law enforcement,

providing law enforcement with priceless tools to aid them in their

investigations including obtaining information for identifying,

13 We refer to registrants using male pronouns for simplicity’s sake. Of course,

sex offenders of all genders must comply with ASORCNA.

14 Unless they have already been collected and have not been altered, a

registrant must provide (1) a photograph, (2) fingerprints, (3) a DNA sample,

(4) a copy of his identification card, and (5) a copy of his passport or

immigration documents. Ala. Code § 15-20A-7(b).

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monitoring, and tracking sex offenders.” Id. § 15-20A-2(1). It

specified that the purpose of the registration requirement was “not

to punish.” Id. § 15-20A-2(5). It stated that the registration

requirements were instead designed to “increas[e] public safety” by

“mandating the release of certain information to the public.” See

id. § 15-20A-2(1). The legislature believed these registration

requirements would “aid in public awareness and not only protect

the community but serve to deter sex offenders from future crimes

through frequent in-person registration.” Id.

ASORCNA also requires law enforcement to notify

community residents about the presence of a registrant in that

community. The purpose of community notification is to “protect

the community” by “inform[ing] the public of the presence of sex

offenders in the community.” Id. Again, the legislature specified

that the purpose of community notification was “not to punish.”

Id. § 15-20A-2(5).

ASORCNA mandates two types of community notification:

(1) indirectly through the internet on Alabama’s public sex offender

registry website and (2) directly by either mailing or hand

delivering notices to a registrant’s neighbors. Id. §§ 15-20A-8(a), 15-

20A-21(a), (b).

First, law enforcement must maintain a public registry

website with information about sex offenders. Id. § 15-20A-8(a).

The statute requires that the website include certain information

about each registrant in the state: his name, his home address, the

address of his school or job, his picture, and a list of his qualifying

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crimes. Id. And the website cannot include certain other

information: the registrant’s social security number; information

about arrests that did not result in conviction; travel and

immigration document numbers; the identity of victims; and the

registrant’s email addresses, instant message addresses, other

online identifiers, or internet service providers. Id. The website

must include “instructions on how to seek correction of

information that a person contends is erroneous.” Id. § 15-20A-8(g).

The website must include a warning that the information

contained on it “should not be used to unlawfully injure, harass, or

commit a crime against any person named in the registry or

residing or working at any reported address and that any such

action may result in civil or criminal penalties.” Id. § 15-20A-8(h). It

also must disclose that ALEA “did not consider or assess the

individual’s specific risk of reoffense or current dangerousness; that

inclusion on the website is based solely on an individual’s

conviction record and state law; and that the Legislature’s purpose

in providing this data is to make the information more easily

available and accessible, not to warn about any specific individual.”

Id.

Second, ASORCNA requires law enforcement to notify the

nearby members of the community directly by mailing or hand

delivering flyers about registrants. Id. § 15-20A-21(b). Self-

identifying as a “Sex Offender Notification Flyer” issued by the

Alabama Public Safety Community Information Center, the flyer

contains the same information about a registrant that is included

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on the public registry website. Id. Law enforcement must send the

flyers to a registrant’s neighbors when he first establishes a

residence. 15 Id. § 15-20A-21(a), (b). Law enforcement may also use

other notification methods such as posting a copy of the flyer in a

prominent place, including it in a local newspaper, or posting it

electronically. Id.

B. Residency Restrictions

ASORCNA’s residency restrictions impose geographic

restrictions on where registrants may live and bar them, between

the hours of 10:30 p.m. and 6:00 a.m., from places where minors

are present. 16 See Ala. Code §§ 15-20A-11(a), (d), 15-20A-4(14). The

Alabama legislature intended these restrictions to “protect[]

vulnerable populations, particularly children.” Id. § 15-20A-2(5). A

registrant who knowingly violates these restrictions may be

punished by up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-

20A-11(i).

15How widely law enforcement distributes the flyers depends on where the

registrant lives. In Birmingham, Mobile, Huntsville, and Montgomery, law

enforcement must distribute flyers to anyone who lives within 1,000 feet of

the registrant’s residence. Ala. Code § 15-20A-21(a)(1). In any other city with a

population of 5,000 or more, the distance is 1,500 feet. Id. § 15-20A-21(a)(2). In

any other area, the distance is 2,000 feet. Id. § 15-20A-21(a)(3). In addition, law

enforcement must notify all schools and childcare facilities within three miles

of the registrant’s residence. Id. § 15-20A-21(a).

16 ASORCNA also prohibits a registrant from living within 2,000 feet of a

former victim or the victim’s immediate family. Ala. Code § 15-20A-11(b). Mr.

McGuire does not challenge this restriction, so we do not address it.

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The geographic residency restriction prohibits registrants

from “resid[ing]” in exclusion zones that extend 2,000 feet from the

property line of each school and childcare center 17 in Alabama. Id.

§ 15-20A-11(a). A registrant need not stay overnight at a place to

“reside” there. Id. § 15-20A-4(20). By definition, a registrant, even

one who is homeless, resides anywhere he is “habitually or

systematically present” and thus may reside at more than one place

at a time. Id. Whether a registrant resides at a place depends on

“the totality of the circumstances, including the amount of time the

person spends at the place and the nature of the person’s conduct

at the place.” Id. A registrant is considered to reside at a place if he

spends (1) “more than four hours a day” there “on three or more

consecutive days”; (2) “more than four hours a day” there “on 10

or more aggregate days during a calendar month”; or (3) “any

amount of time” there “coupled with statements or actions that

indicate an intent to live at the place or to remain at the place for

the periods specified in this sentence.” Id.

A registrant may live in an exclusion zone if, after

establishing his residence, changes occur to the surrounding area

that render the location noncompliant. See id. § 15-20A-11(c). For

17 ASORCNA also bars a registrant from residing within 2,000 feet of a

“resident camp facility.” Ala. Code § 15-20A-11(a). “[A] resident camp facility

includes any place, area, parcel, or tract of land which contains permanent or

semi-permanent facilities for sleeping owned by a business, church, or

nonprofit organization used primarily for educational, recreational, or

religious purposes for minors[.]” Id. As we have stated, registrants can apply

for relief from these residency restrictions. See id. § 15-20A-23.

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example, if a registrant lives outside an exclusion zone and a new

childcare center opens 500 feet away, the registrant generally may

stay in his home. In addition, the Attorney General represents to

us that the geographic residency restriction permits a registrant to

continue living in a residence that he established before

ASORCNA’s effective date unless the registrant was released or

convicted of a new offense after ASORCNA’s enactment. The

record supports that this is indeed how the law has been applied in

practice.18

Beyond the geographic residency restriction, ASORCNA

prohibits a registrant from “conduct[ing] an overnight visit with a

minor” unless the registrant is the parent, grandparent, stepparent,

sibling, or stepsibling of the minor. Id. § 15-20A-11(d). An overnight

visit means “[a]ny presence between the hours of 10:30 p.m. and

6:00 a.m.” Id. § 15-20A-4(14). Thus, during those hours, a registrant

may not be present—for any period or any reason—where a minor

18 There are two other exceptions to ASORCNA’s geographic residency

restrictions. First, before moving, a registrant may ask law enforcement to

determine whether his intended new residence complies with ASORCNA. If

law enforcement states in writing that the residence complies with

ASORCNA, the registrant has not violated the law if it later turns out that the

residence is within an exclusion zone. Ala. Code § 15-20A-11(g). Second, a

registrant who is terminally ill or permanently immobile, has a debilitating

medical condition requiring substantial care or supervision, or requires

placement in a residential health care facility may be permitted to live inside

an exclusion zone if a state court finds by clear and convincing evidence that

he does not a pose a “substantial risk” of committing a future sex offense. Id.

§ 15-20A-23(a), (g).

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is present, unless the registrant and the minor are related in one of

the ways listed in § 15-20A-11(d).

C. Employment Restriction

ASORCNA limits where registrants may work or volunteer.

The Act bars registrants from “accept[ing] or maintain[ing]

employment or a volunteer position within 2,000 feet of the

property on which a school or childcare facility is located.” Ala.

Code § 15-20A-13(b). 19 An exception permits a registrant to

continue to work in an exclusion zone if, after he accepts

employment, a new school or childcare center opens within 2,000

feet of his workplace. See id. § 15-20A-13(d). Additionally, a

registrant may petition for relief from these employment

restrictions if he was not convicted of certain sexual offenses and

the court finds by clear and convincing evidence that he does not

pose a substantial risk of committing another sexual offense. Id.

§ 15-20A-25(a), (f).

Like the residency restrictions, the Alabama legislature

enacted the employment restriction to “further[] the primary

governmental interest of protecting vulnerable populations,

19 ASORCNA includes two other employment restrictions. One

bars registrants from working or volunteering at schools, childcare centers, or

businesses that primarily serve children. Ala. Code § 15-20A-13(a). The other

bars registrants convicted of sex offenses involving children from working or

volunteering within 500 feet of a playground, park, athletic field or facility, or

other business or facility having a principal purpose related to children. Id.

§ 15-20A-13(c).

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20 Opinion of the Court 15-10958

particularly children.” Id. § 15-20A-2(5). A registrant who

knowingly violates the employment restriction may be punished

with up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-20A-

13(g).

D. Homeless Registration Requirement

Registrants who are homeless must report to law

enforcement far more frequently than registrants who have fixed

residences. Homeless registrants must report 56 times a year

because, in addition to the quarterly reports required of all

registrants, they must make weekly reports to law enforcement.

Ala. Code §§ 15-20A-10(f), 15-20A-12(b). Each week, a registrant

who is homeless must provide a detailed description of where he

“resided during the week” and a list of locations where he “plans to

reside in the upcoming week with as much specificity as possible.”

Id. § 15-20A-12(d)(1).

The Alabama legislature required homeless sex offenders to

report more often than other registrants because of “their

mobility,” finding that more frequent registration would protect

the public. Id. § 15-20A-2(3). It found that “[a]s the number of

homeless sex offenders increases, locating, tracking, and

monitoring these offenders becomes more difficult.” Id. The

legislature expressly “declare[d] that its intent in imposing” this

monitoring requirement was “not to punish.” Id. § 15-20A-2(5). If a

homeless registrant “knowingly violates” the registration

requirements, he faces up to 10 years’ imprisonment. Id. §§ 13A-5-

6(a)(3), 15-20A-12(f).

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E. Travel Notification Requirement

The Act requires registrants to notify law enforcement

when traveling. Before leaving his county of residence for three or

more consecutive days, a registrant must report to the county

sheriff and “sign a travel notification document.” Ala. Code § 15-

20A-15(a). He must disclose his dates of travel, intended

destination, and temporary lodging information. Id. § 15-20A-15(b).

For domestic travel, a registrant must complete the document

within three business days of beginning his trip. Id. §§ 15-20A-4(9),

15-20A-15(a). For international travel, he generally must complete

the travel form 21 days prior to travel. Id. § 15-20-15(c). A registrant

who knowingly violates the travel notification requirement faces

up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-20A-15(h).

The Alabama legislature imposed the travel notification

requirement “to protect the public, and, most importantly, [to]

promote child safety,” not to punish registrants. Id. § 15-20A-2(5).

III. STANDARD OF REVIEW

Because Mr. McGuire appeals the district court’s judgment

entered after a bench trial, “we review the district court’s

conclusions of law de novo and the district court’s factual findings

for clear error.” Proudfoot Consulting Co. v. Gordon, 576 F.3d

1223, 1230 (11th Cir. 2009).

IV. MOOTNESS

Before turning to the merits of Mr. McGuire’s claims, we

must address whether any of Mr. McGuire’s claims are moot. As

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22 Opinion of the Court 15-10958

we noted above, while this appeal was pending, the Alabama

legislature amended ASORCNA, and ALEA changed the way it

implemented ASORCNA’s identification-labeling requirement.

See supra Section I-B.

The Constitution’s “cases” and “controversies” requirement

“subsists through all stages of federal judicial proceedings.” Lewis

v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “[I]t is not enough

that a dispute was very much alive when [the] suit was filed.” Id.

“The parties must continue to have a personal stake in the outcome

of the lawsuit.” Id. at 478 (internal quotation marks omitted).

Otherwise, we lack jurisdiction.

When a plaintiff challenges a law as unconstitutional and

seeks only declaratory and injunctive relief, as Mr. McGuire does

here, a subsequent change to the law or relevant policy can moot

his claims. See Crown Media, LLC v. Gwinnett Cnty., 380 F.3d

1317, 1324 (11th Cir. 2004); Jews for Jesus, Inc. v. Hillsborough

Cnty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). In a case

like this one involving multiple challenges, the entire case becomes

moot only when the superseding statute removes all challenged

features of the law. Coral Springs St. Sys., Inc. v. City of Sunrise,

371 F.3d 1320, 1342–43 (11th Cir. 2004). Challenges to individual

features may become moot, however. See Crown Media, 380 F.3d

at 1324.

Whether a defendant’s voluntary cessation of conduct

moots a claim is subject to a “stringent” test. Coral Springs,

371 F.3d at 1328 (internal quotation marks omitted). But we give

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“governmental entities and officials . . . considerably more leeway”

than private parties. Id. at 1328–29. The repeal or amendment of a

statute or policy generally will moot a challenge unless there is a

“substantial likelihood” that the challenged statute or policy will be

reenacted or reinstated. Id. at 1329; Jews for Jesus, 162 F.3d at 629.

We agree with the parties that amendments to ASORCNA

have not mooted Mr. McGuire’s entire case. Some of the

challenged provisions—the residency and employment

restrictions, the homeless registration requirement, the travel

notification requirement, and community notification—remain in

effect. Accordingly, we address the merits of these claims based on

ASORCNA as it currently exists. See Naturist Soc’y, Inc. v. Fillyaw,

958 F.2d 1515, 1520 (11th Cir. 1992).

But Mr. McGuire’s objections to other requirements of

ASORCNA are moot. These include challenges to the dual

reporting requirements for city-dwelling registrants who are

homeless or plan to travel. After the district court declared these

requirements unconstitutional, ASORCNA was amended to

remove those particular dual reporting requirements. Mr. McGuire

does not contend that there is a substantial likelihood that those

dual reporting provisions will be reenacted; thus we conclude that

the claims challenging these requirements are moot.

Mr. McGuire’s challenge to the identification-labeling

requirement also is moot. Under ASORCNA, a registrant must

carry a valid driver’s license or other identification card issued by

ALEA. Ala. Code § 15-20A-18(a). The identification must “bear a

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24 Opinion of the Court 15-10958

designation that, at a minimum, enables law enforcement officers

to identify the licensee as a sex offender.” Id. § 15-20A-18(c). ALEA

implemented the labeling requirement by placing the phrase

“CRIMINAL SEX OFFENDER” in red, capital letters on the front

of registrants’ driver’s licenses and identification cards. While this

appeal was pending, however, ALEA changed its policy and no

longer uses the “CRIMINAL SEX OFFENDER” label.

Given ALEA’s policy change, Mr. McGuire’s challenge is

moot. ALEA ceased using the “CRIMINAL SEX OFFENDER”

label after a district court in another case declared it

unconstitutional, and the Attorney General did not appeal that

decision. See Doe, 367 F. Supp. 3d at 1339. We presume that ALEA

will not reinstate the policy. Therefore, Mr. McGuire’s challenge

to the identification-labeling requirement is moot. See Coral

Springs, 371 F.3d at 1328–29.

To recap: the part of Mr. McGuire’s appeal challenging the

identification-labeling requirement is moot. Also moot is the

Attorney General’s cross-appeal challenging the district court’s

order striking the dual reporting requirements for homeless

registrants and for travel notification. As a result, we will vacate the

district court’s judgment as to those requirements and remand

with directions to dismiss as moot Mr. McGuire’s claims

challenging them. See CIA v. Holy Spirit Ass’n for the Unification

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15-10958 Opinion of the Court 25

of World Christianity, 455 U.S. 997, 997 (1982); Great W. Sugar Co.

v. Nelson, 442 U.S. 92, 93 (1979). 20

20 While this appeal was pending, the Attorney General sought to dismiss Mr.

McGuire’s challenge to the homeless registration requirement as moot

because Mr. McGuire was no longer homeless. After oral argument, we

remanded the case to the district court for the limited purpose of finding facts

to determine whether this challenge was moot. Although Mr. McGuire had

lived in a house for a time, the district court found that he was homeless again.

Even when he was not homeless, the court found, there existed a reasonable

expectation and demonstrated probability that he would return to being

homeless in the future. The court also concluded that if Mr. McGuire ceased

to be homeless in the future, his period of homelessness would be too short to

litigate fully his challenge to the homeless registration provision.

It appears from Alabama’s sex offender registry website that Mr. McGuire’s

current address is at a house in Montgomery, and he is no longer homeless.

ALEA’s Sex Offender Registry is available here:

https://www.icrimewatch.net/results.php?AgencyID=

54247&SubmitNameSearch=1&OfndrCity=montgomery&OfndrLast=&Of

ndrFirst=&level=&AllCity=&altaddr=home_addr&excludeIncarcerated=0

&page=1 (last visited Sept. 29, 2022). We may take judicial notice of it. See

Fed. R. Evid. 201(b), (d); United States v. Howard, 28 F.4th 180, 186 n.2 (11th

Cir. 2022) (“Absent some reason for mistrust, courts have not hesitated to take

judicial notice of agency records and reports.”) (internal quotation marks

omitted). Still, given the district court’s findings, we conclude that his

challenge to the homeless reporting requirement is not moot under the

capable-of-repetition-yet-evading-review exception to the mootness doctrine.

See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016).

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26 Opinion of the Court 15-10958

V. THE LEGAL FRAMEWORK FOR EVALUATING EX

POST FACTO CLAIMS

The Constitution forbids states from “pass[ing] any . . . ex

post facto Law.” U.S. Const. art. I, § 10, cl. 1. The Ex Post Facto

Clause prohibits retroactive punishment; that is, it “forbids the

application of any new punitive measure to a crime already

consummated.” Kansas v. Hendricks, 521 U.S. 346, 370 (1997)

(internal quotation marks omitted). By prohibiting retroactive

punishments, “the Framers sought to assure that legislative Acts

give fair warning of their effect and permit individuals to rely on

their meaning until explicitly changed.” Weaver v. Graham,

450 U.S. 24, 28–29 (1981). The framers of the Constitution intended

provisions that serve as a check on a state’s power, like the Ex Post

Facto Clause, to protect disfavored groups:

Whatever respect might have been felt for the state

sovereignties, it is not to be disguised that the framers

of the constitution viewed, with some apprehension,

the violent acts which might grow out of the feelings

of the moment; and that the people of the United

States, in adopting that instrument, have manifested

a determination to shield themselves and their

property from the effects of those sudden and strong

passions to which men are exposed.

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Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137–38 (1810). 21 Because

the Ex Post Facto Clause prohibits the retroactive application only

of laws imposing punishment, a statutory scheme that is civil and

regulatory in nature rather than criminal may apply retroactively

without violating the Constitution. See Collins v. Youngblood,

497 U.S. 37, 43 (1990); United States v. W.B.H., 664 F.3d 848, 852

(11th Cir. 2011).

To show entitlement to relief under the Ex Post Facto

Clause, Mr. McGuire must establish that the challenged provisions

in ASORCNA are criminal in nature. To determine whether a law

is criminal in nature, we apply a two-part “intent-effects” test. See

Smith v. Doe, 538 U.S. 84, 92 (2003). In the first step of the inquiry,

we ask whether the legislature intended to impose punishment. Id.

If the legislature intended to impose punishment, the inquiry ends,

and the statutory scheme is punitive. Id. If the intent of the

legislature was to create a civil and nonpunitive scheme, we

proceed to the second step and ask whether the statutory scheme

is “so punitive either in purpose or effect as to negate” the

legislature’s intent to deem it civil. Id. (internal quotation marks

omitted). The Supreme Court has cautioned, “[b]ecause we

21 See also The Federalist No. 44, at 249 (James Madison) (E.H. Scott ed., 1898)

(describing the Ex Post Facto Clause as a “constitutional bulwark in favor of

personal security and private rights”); The Federalist No. 84, at 468 (Alexander

Hamilton) (E.H. Scott ed., 1898) (“[T]he subjecting of men to punishment for

things which, when they were done, were breaches of no law . . . ha[s] been,

in all ages, [a] favorite and most formidable instrument[] of tyranny.”).

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28 Opinion of the Court 15-10958

ordinarily defer to the legislature’s stated intent, only the clearest

proof will suffice to override legislative intent and transform what

has been denominated a civil remedy into a criminal penalty.” Id.

(emphasis added) (internal quotation marks and citation omitted).

We discuss each step of the intent-effects analysis below.

A. The Intent Analysis

At the first step in our analysis, we ask “whether the

legislature, in establishing the penalizing mechanism, indicated

either expressly or impliedly a preference for [a civil or criminal]

label.” Smith, 538 U.S. at 93 (internal quotation marks omitted).

For this inquiry into legislative intent, we “consider the statute’s

text and its structure.” Id. at 92.

When the legislature states in a statute’s text that the

objective of the statutory scheme is to protect the public, it

indicates an exercise of the State’s power to protect the health and

safety of its citizens and evidences an intent to enact a civil

regulatory scheme. See id. at 93–94. In Smith, a group of sex

offenders challenged Alaska’s statute that required sex offenders to

register with law enforcement and made much of the registration

information public. Id. at 90–91. The plaintiffs claimed that

retroactive application of the statute violated the Ex Post Facto

Clause. Id. at 89. Under the Alaska law, individuals who had

committed sex offenses were required to register with local law

enforcement either quarterly for life or annually for fifteen years,

depending on the number and the seriousness of their prior sex

offense convictions. Id. at 90. The law also required the State to

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maintain a publicly available registry of sex offenders, which it

made available on a website. Id. at 90–91.

The Supreme Court concluded that the Alaska legislature

intended the registration and community notification scheme to be

civil. Id. at 93. The Court explained that the statute included a

finding that sex offenders posed a high risk of reoffending and

identified protecting the public as the primary governmental

interest behind the law. Id. The Court accepted these statements

on their face as sufficient to indicate that the legislature intended to

create “a civil scheme designed to protect the public from harm.”

Id. (alteration adopted) (internal quotation marks omitted). It

stated that the “imposition of restrictive measures on sex offenders

adjudged to be dangerous is a legitimate nonpunitive

governmental objective and has been historically so regarded.” Id.

(internal quotation marks omitted).

The Court rejected the registrants’ argument that other

features of the statute showed that the legislature intended it to be

punitive. See id. at 93–94. The registrants argued that the

codification of the registration provisions in the state’s criminal

procedure code showed a legislative intent to punish. Id. The Court

acknowledged that the placement of the provisions in the criminal

procedure code could be probative of the legislature’s intent. Id. at

94. But it found this placement “not dispositive” because the

“location and labels of a statutory provision do not by themselves

transform a civil remedy into a criminal one.” Id. The Court thus

determined that “[t]he partial codification” of the registration

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30 Opinion of the Court 15-10958

provisions in the criminal procedure code was insufficient “to

support a conclusion that the legislative intent was punitive.” Id. at

95.

B. The Purpose or Effect Analysis

In the second step of the inquiry, we “examine whether the

statutory scheme is so punitive either in purpose or effect as to

negate the State’s intention to deem it civil.” Smith, 538 U.S. at 92

(alteration adopted) (internal quotation marks omitted). To

determine whether a regulatory scheme is “so punitive” in purpose

or effect when applied retroactively, we consider several factors

that the Supreme Court originally adopted in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168–69 (1963), and later applied

in the ex post facto context, see Smith, 538 U.S. at 97. Mendoza-

Martinez directed us to consider:

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.

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Smith, 538 U.S. at 97. 22 These factors, which were “designed to

apply in various constitutional contexts,” are “neither exhaustive

nor dispositive” and instead function as “useful guideposts.” Id.

(internal quotation marks omitted). Because courts “ordinarily

defer to the legislature’s stated intent, only the clearest proof will

suffice to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.” Id. at 92

(internal quotation marks and citation omitted). The Supreme

Court has described this as a “heavy burden.” Hendricks, 521 U.S.

at 361. As our sister circuit has observed, “[t]his is a challenging

standard for plaintiffs.” Hope v. Comm’r of Ind. Dep’t of Corr., 9

F.4th 513, 530–31 (7th Cir. 2021) (en banc).

As we apply the listed factors, Smith, following Mendoza-

Martinez, commands that we consider the challenged statutory

scheme in its “necessary operation.” Smith, 538 U.S. at 97. Courts

generally use one of three distinct frameworks to review a

constitutional challenge to a statutory provision, treating it as an

22 Mendoza-Martinez identified two other 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.” Smith, 538 U.S. at 105. In Smith, the Court

gave these factors “little weight.” Id. The Court explained that Alaska’s

scheme applied “only to past conduct, which was, and is, a crime.” Id.

Although the duty to register applied to individuals with prior convictions for

sexual offenses only, the Court found it significant that the duty to register was

based on prior crimes and “not predicated upon some present or repeated

violation.” Id. Following the Supreme Court’s lead, we likewise give these

factors little weight and find it unnecessary to address them further.

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32 Opinion of the Court 15-10958

as-applied, a facial, or a quasi-facial challenge. After considering

Smith, we conclude that “necessary operation” review does not fit

neatly into any of these frameworks. Let us explain why.

In an as-applied challenge, a plaintiff seeks to vindicate only

her own constitutional rights. Jacobs v. Fla. Bar, 50 F.3d 901, 906

(11th Cir. 1995). In evaluating an as-applied challenge, a court

“addresses whether a statute is unconstitutional on the facts of a

particular case” or in its application “to a particular party.” Harris

v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir.

2009) (internal quotation marks omitted). By contrast, in a facial

challenge, a plaintiff seeks “to invalidate a statute . . . itself” and to

vindicate not only her own rights “but also those of others who

may be adversely impacted by the statute.” DA Mortg., Inc. v. City

of Miami Beach, 486 F.3d 1254, 1262 (11th Cir. 2007) (internal

quotation marks omitted). A plaintiff who brings a facial challenge

“bears the burden of proving that the law could never be applied

in a constitutional manner.” Id. To prevail, the plaintiff “must

establish that no set of circumstances exists under which the

[statute] could be valid.” Am. Fed’n of State, Cnty. & Mun. Emps.

Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (internal

quotation marks omitted). In a “quasi-facial” challenge, the plaintiff

contends that the law cannot be constitutionally applied to a

defined subset of people the law covers, which includes herself. Id.

To prevail in a quasi-facial challenge, he must satisfy the standard

for a facial challenge to the extent that his claim “reach[es] beyond

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15-10958 Opinion of the Court 33

[her] particular circumstances.” Doe v. Reed, 561 U.S. 186, 194

(2010).

At first blush, Mr. McGuire appears to have brought an as-

applied challenge because in his complaint he sought to vindicate

his individual rights alone through a determination that the

defendants had applied an ex post facto law to him. He did not ask

the court to provide relief from ASORCNA’s provisions to any

other registrants. But an ex post facto challenge is different: we do

not review it as we would an as-applied claim, where we focus

exclusively on a law’s application to a particular party. See Seling

v. Young , 531 U.S. 250, 263–65 (2001).

In Young, the plaintiff challenged his confinement under a

state law that authorized the civil commitment of sexually violent

individuals who suffered “from a mental abnormality or

personality disorder” that made them “likely to engage in

predatory acts of sexual violence.” Id. at 253. Shortly before Young

completed his prison sentence for a sex crime, he was civilly

committed. Id. at 255–56. After years of confinement, he filed a

federal habeas petition claiming that his continued detention

violated the Ex Post Facto and Double Jeopardy Clauses. Id. at 258.

He alleged that the confinement statute was punitive as applied to

him because of the length of time he had been confined and the

conditions of his confinement, which were more restrictive than

those placed on other civil commitment detainees. Id. at 259. The

Ninth Circuit concluded that Young had adequately alleged the law

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34 Opinion of the Court 15-10958

was punitive as applied to him and remanded for further

proceedings. Id. at 260.

The Supreme Court rejected the Ninth Circuit’s conclusion

that Young “could raise an ‘as-applied’ challenge to the [statute] on

. . . ex post facto grounds.” Id. at 262. It explained that a court may

not evaluate the “civil nature of an Act by reference to the effect

that Act has on a single individual.” Id. at 262; see also Flemming

v. Nestor, 363 U.S. 603, 614 (1960) (noting that a civil law is “not

punishment even though it may bear harshly upon one affected”).

The Court warned that considering the effect of a law on only a

single individual was “unworkable” because such an analysis

would “never conclusively resolve whether a particular scheme is

punitive.” Young, 531 U.S. at 263. Young makes clear that an ex

post facto claim cannot be treated as an as-applied challenge. See

id. at 262–63; Does v. Wasden, 982 F.3d 784, 791 (9th Cir. 2020)

(explaining that “ex post facto claims based on the punitive effect

of purportedly civil statutes cannot be construed as ‘as-applied’

challenges”).

Nor do ex post facto claims fit the frameworks used to

review facial or quasi-facial challenges. In Smith, after concluding

that the legislature intended to create a civil scheme, the Supreme

Court considered whether Alaska’s registration and community

notification provisions were sufficiently punitive in effect to

override the Alaska legislature’s expressed intent. See 538 U.S at 97.

In applying the Mendoza-Martinez factors, the Court did not use

the words “facial” or “quasi-facial,” and it did not inquire whether

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15-10958 Opinion of the Court 35

there was at least one sex offender to whom the registration or

notification provisions could retroactively be applied without

violating the Constitution. Id. at 97–106. Instead, the Court’s

reasoning reflects that it considered the effects of the registration

and notification provisions as they were generally felt by those who

were subject to them. See id. at 100 (evaluating whether the

challenged law imposed an affirmative disability or restraint, a

Mendoza-Martinez factor, by looking for evidence that the

statutory provisions “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”).

Regardless of how the framework is described, we can distill

that a plaintiff has a “heavy burden,” Hendricks, 521 U.S. at 361,

when seeking to override a legislative expression of intent that a

challenged provision is civil, and “only the clearest proof will

suffice” to meet that burden, Smith, 538 U.S. at 92. 23 We

23 Our decision in Doe v. Miami-Dade County, 974 F.3d 1333 (11th Cir. 2020),

is not to the contrary. That case involved an ex post facto challenge to a county

ordinance that barred sex offenders whose victims were children from living

within 2,500 feet of a school. Id. at 1335. Before trial, the registrants

“affirmatively disavowed” that they were seeking as-applied relief, telling the

court they sought “only” facial relief. Id. at 1339 n.3, 1340. During trial, the

registrants shifted gears and sought to amend their complaint to add an as-

applied claim. Id. at 1336–37. The district court refused to allow the registrants

to amend their complaint at that point. Id. at 1337. We affirmed, holding that

the district court did not abuse its discretion in denying leave to amend,

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36 Opinion of the Court 15-10958

understand that a plaintiff cannot carry his heavy burden by

demonstrating the law’s effects only as to him. At the same time, a

plaintiff need not satisfy the standard for a facial or quasi-facial

challenge, which would require a showing that the law could never

be applied retroactively in a constitutional manner.

VI. ANALYSIS OF ASORCNA’S CHALLENGED

PROVISIONS UNDER THE INTENT-EFFECTS TEST

At last, we apply the intent-effects test to determine whether

ASORCNA is civil or punitive. Because we conclude that the

Alabama legislature intended to enact a civil legislative scheme, we

must assess whether Mr. McGuire has shown by “the clearest

proof” that ASORCNA’s challenged provisions are so punitive in

purpose or effect as to override the Alabama legislature’s stated

intent to enact a civil regulatory scheme. See Smith, 538 U.S. at 92.

We hold that he has failed to meet that heavy burden. See

Hendricks, 521 U.S. at 361.

emphasizing that the county had no notice that the registrants intended to

bring an as-applied claim and thus no opportunity to prepare to rebut that

claim. Id. at 1339–41.

We questioned whether there was any actual distinction between an “as-

applied” and “facial” ex post facto challenge. Id. at 1339 n.3. But given the

registrants’ litigation strategy and their express disavowal in the district court

that they were bringing an as-applied challenge, we assumed, without

deciding, that different frameworks were used to review “as-applied” and

“facial” ex post facto challenges. See id.

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A. The Alabama Legislature Intended to Create a Civil,

Nonpunitive Scheme

We begin by looking to the Alabama legislature’s intent. In

its legislative findings, the legislature explained that it had enacted

the employment and residency restrictions along with the

“monitoring and tracking” and community notification provisions

to “further[] the primary governmental interest of protecting

vulnerable populations, particularly children.” Ala. Code § 15-20A-

2(5). It also declared that “its intent in imposing certain registration,

notification, monitoring, and tracking requirements on sex

offenders [was] not to punish sex offenders but to protect the public

and, most importantly, promote child safety.” Id. We conclude that

by expressly disavowing an intent to punish sex offenders and

setting forth public-safety-related goals for the statutory scheme,

the Alabama legislature intended the legislation to be nonpunitive.

See Smith, 538 U.S. at 93 (holding that Alaska legislature intended

to enact a civil scheme when statutory text identified protecting the

public as the primary governmental interest).

Mr. McGuire argues that despite the Alabama legislature’s

expressed intent, before turning to the Mendoza-Martinez factors

we should infer from the structure of ASORCNA that the

legislature intended the scheme to be punitive because the statute

is codified in Alabama’s criminal procedure code and imposes

criminal penalties on registrants who violate its provisions. He also

argues that a canon of statutory construction indicates that the

Alabama legislature had a punitive intent. But neither the structure

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38 Opinion of the Court 15-10958

of the Act nor the application of the canons of construction reveals

a punitive intent.

We are not persuaded by Mr. McGuire’s codification

argument. Even though a state legislature’s decision to codify a

statutory scheme in its criminal code may indicate a legislative

intent to enact a punitive scheme, Smith tells us that when the

legislature stated expressly in the statute that it intended the

legislative scheme to have a nonpunitive objective, the location of

the statutory provisions alone is insufficient to conclude otherwise.

Id. at 94–95. We acknowledge that Mr. McGuire’s codification

argument is somewhat stronger here than the registrants’

argument in Smith because all (not just part) of ASORCNA is

codified in Alabama’s criminal procedure code. But Smith’s

reasoning leads us to reject this argument. Id. As the Court pointed

out, “[i]nvoking the criminal process in aid of a statutory regime

does not render the statutory scheme itself punitive.” Id. at 96.

Mr. McGuire’s related structural argument, that the

legislature intended ASORCNA to be punitive because violations

of it are criminal, is foreclosed by our decision in W.B.H. In

W.B.H., we considered whether Congress intended SORNA, the

federal statute requiring in-person sex offender registration, to be

civil or punitive. 664 F.3d at 854. We rejected the argument that

Congress implicitly intended to create a punitive scheme by

imposing a criminal penalty for violating the registration

requirement because “civil regimes may impose criminal penalties

for violations of their regulatory requirements.” Id. Given

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Congress’s statement that the objective of the statute was to

protect children from sex offenders, we held that Congress

intended to enact a civil, nonpunitive scheme despite making

failure to register a crime. Id. at 854–55. W.B.H. dictates our

conclusion that the Alabama legislature intended ASORCNA to be

civil even though the statute imposes criminal penalties on

registrants who fail to comply with its provisions.

Mr. McGuire’s next argument is that we should conclude

the Alabama legislature intended the residency and employment

restrictions to be punitive based on the expressio unius est exclusio

alterius canon of construction. The legislature specified that the

registration, notification, monitoring, and tracking requirements

were not intended to punish sex offenders without mentioning the

residency and employment restrictions in that particular sentence,

though they are addressed in the same paragraph. Ala. Code § 15-

20A-2(5). 24 Mr. McGuire argues that under the expressio unius

24 In its entirety, the paragraph states:

Sex offenders, due to the nature of their offenses, have a

reduced expectation of privacy. In balancing the sex offender’s

rights, and the interest of public safety, the Legislature finds

that releasing certain information to the public furthers the

primary governmental interest of protecting vulnerable

populations, particularly children. Employment and residence

restrictions, together with monitoring and tracking, also

further that interest. The Legislature declares that its intent in

imposing certain registration, notification, monitoring, and

tracking requirements on sex offenders is not to punish sex

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40 Opinion of the Court 15-10958

canon, we must infer that the legislature intended the omitted

residency and employment restrictions to be punitive. We cannot

agree.

Under this canon of construction, “when a legislature has

enumerated a list or series of related items, the legislature intended

to exclude similar items not specifically included in the list.”

Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1193

(11th Cir. 2011). But the canon “can be overcome by contrary

indications that adopting a particular rule or statute was probably

not meant to signal any exclusion.” Marx v. Gen. Revenue Corp.,

568 U.S. 371, 381 (2013) (internal quotation marks omitted).

We reject Mr. McGuire’s argument because the expressio

unius canon is overcome here. In context, ASORCNA’s exclusion

of the residency and employment restrictions from the list of

provisions that the legislature stated in one sentence were intended

“not to punish” does not signal that it intended for them to be

punitive. Ala. Code § 15-20A-2(5). It does not because in the

immediately preceding sentence of the very same paragraph, the

legislature stated that the residency and employment restrictions

“also further” the interest in “protecting vulnerable populations,

particularly children.” Id. That indicates a civil, nonpunitive intent.

See Smith, 538 U.S. at 93–94.

offenders but to protect the public and, most importantly,

promote child safety.

Ala. Code § 15-20A-2(5).

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15-10958 Opinion of the Court 41

B. Mr. McGuire Failed to Establish by the Clearest Proof

that the Challenged Restrictions Are Sufficiently

Punitive to Override the Legislature’s Intent

Having determined that the Alabama legislature intended

ASORCNA to be civil and regulatory rather than punitive, we

move to the second step of the ex post facto analysis: whether the

challenged restrictions are “so punitive either in purpose or effect

as to negate [Alabama’s] intention to deem” the restrictions civil.

Smith, 538 U.S. at 92 (internal quotation marks omitted). We

consider each restriction in turn. 25

25For ease of analysis, we consider the residency and employment provisions

of ASORCNA together because even in combination, we conclude that they

do not violate the Ex Post Facto Clause. We recognize, however, that if our

conclusion were different, we would be bound to preserve as much of the Act

as possible. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“A court

should refrain from invalidating more of the statute than is necessary.

Whenever an act of [the legislature] contains unobjectionable provisions

separable from those found to be unconstitutional, it is the duty of this court

to so declare, and to maintain the act in so far as it is valid.” (alterations

adopted) (internal quotation marks omitted)). Every statute codified as part of

the 1975 Code of Alabama, including ASORCNA, is subject to a strong

severability clause. See Ala. Code § 1-1-16 (“If any provision of this Code or

any amendment hereto, or any other statute, or the application thereof to any

person, thing or circumstances, is held invalid by a court of competent

jurisdiction, such invalidity shall not affect the provisions or application of this

Code or such amendment or statute that can be given effect without the

invalid provisions or application, and to this end, the provisions of this Code

and such amendments and statutes are declared to be severable.”).

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42 Opinion of the Court 15-10958

1. Mr. McGuire Failed to Carry His Heavy Burden to Prove

that the Residency and Employment Restrictions Are

Sufficiently Punitive in Purpose or Effect

We first consider whether Mr. McGuire has established by

the clearest proof that ASORCNA’s residency and employment

restrictions are sufficiently punitive in purpose or effect to override

the legislative intent that they be civil. After careful consideration,

we conclude that Mr. McGuire failed to carry the heavy burden

required to override the legislature’s stated nonpunitive intent.

a. Resemblance to a Traditional Punishment

Mr. McGuire argues that the residency and employment

restrictions, which jointly prohibit registrants from residing,

working, or volunteering within a 2,000-foot radius of any school

or childcare facility in Alabama, sufficiently resemble the

traditional punishment of banishment. We are not convinced.

With the first factor, we consider whether the statutory

scheme imposes what has been regarded in our history and

tradition as punishment. This type of “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.” Smith, 538 U.S. at 97. But a

statutory restriction need not be identical to a traditional

punishment for this factor to be satisfied. The relevant question is

whether the challenged provision sufficiently “resemble[s]” or is

“analogous” to a historical and traditional form of punishment. Id.

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15-10958 Opinion of the Court 43

at 97, 99; see also W.B.H., 664 F.3d at 855 (explaining that we

consider whether a restriction “resemble[s] historical and

traditional forms of punishment”). The amount of resemblance

required must be something more than “initial resemblance.” See

Smith, 538 U.S. at 98 (“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.”).

The question we face here is whether the residency and

employment restrictions bear a sufficient resemblance to the

traditional punishment of banishment. Banishment dates back

more than 4,000 years. See Wm. Garth Snider, Banishment: The

History of Its Use and a Proposal for Its Abolition Under the First

Amendment, 24 New. Eng. J. on Crim. & Civ. Confinement 455,

459 (1998). It is a form of punishment contained in the Code of

Hammurabi, Mosaic law, the Old Testament Book of Esther, the

Laws of Manu, and the T’ang Code. Id. at 459–60. It became most

familiar to Americans in the early 1700s, when the United Kingdom

passed the Transportation Act of 1718 and banished around 50,000

of its criminals to America. Id. at 461–62.

As its history reflects, banishment punishes by “expell[ing]”

a person “from the community.” Smith, 538 U.S. at 98. Sometimes

it has been referred to as “exile, deportation, [or] relegation.”

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44 Opinion of the Court 15-10958

United States v. Ju Toy, 198 U.S. 253, 269 (1905) (Brewer, J.,

dissenting). Whatever the name, it was considered a punishment

of the “severest sort.” Id. at 273. Those who suffered it could

“neither return to their original community nor, reputation

tarnished, be admitted easily into a new one.” Smith, 538 U.S. at

98. Banished offenders were rendered “absolutely dead in law” and

“entirely cut off from society.” 1 William Blackstone,

Commentaries on the Laws of England *132.

Although the residency and employment restrictions limit

where registrants may live or work, we hold that the restrictions

do not sufficiently resemble the traditional punishment of

banishment to be considered punitive. Registrants are not totally

prohibited from entering the exclusion zones that ASORCNA

creates. It is true that they may not reside, work, or volunteer in

the exclusion zones. But they remain able to enter exclusion zones

for other purposes. For example, they may go into exclusion zones

to see health care providers, visit friends or family, eat meals, shop,

or worship. Indeed, a registrant may visit the same location in an

exclusion zone every day, so long as he does not spend more than

four hours a day in the place on three or more consecutive days or

on ten or more aggregate days during a calendar month and does

not indicate an intention to live there. See Ala. Code § 15-20A-

4(20). In addition, the Attorney General concedes that registrants

are permitted to work in jobs that require them to perform some

tasks inside exclusion zones. For example, the Attorney General

says a registrant working as a delivery person may drop off

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packages at locations inside exclusion zones and a registrant

working as a landscaper may tend to yards inside exclusion zones.

Mr. McGuire nevertheless argues that the residency and

employment restrictions resemble banishment because they

“effectively” bar registrants from the City of Montgomery.

Appellant’s Br. at 17. We assume for purposes of this appeal that

restrictions prohibiting registrants from entering exclusion zones

for some, but not all, purposes could in some circumstances

resemble banishment. But Mr. McGuire has not shown that

ASORCNA’s residency and employment restrictions operate to

effectively bar registrants from Montgomery.

In arguing that the residency and employment restrictions

effectively cast registrants out of Montgomery, Mr. McGuire points

to two categories of evidence. First, he points to evidence about

the difficulties he faced in finding a home or job outside the

exclusion zones. Second, he points to evidence supporting the

district court’s finding that the residency and employment

restrictions excluded registrants from more than 80 percent of the

housing stock and jobs in Montgomery. 26

26Mr. McGuire’s argument assumes that he can carry his heavy burden to

show that the residency and employment restrictions in their necessary

operation resemble banishment through evidence addressing the effect of

these restrictions on registrants in his community of Montgomery, without

establishing that the statewide restrictions also have a similar effect in other

parts of Alabama. We do not decide whether this assumption is correct

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46 Opinion of the Court 15-10958

Mr. McGuire’s evidence about his individual circumstances

and the particular difficulties that he faced in finding compliant

housing and work outside of the exclusion zones does not establish

that the residency and employment restrictions resemble

banishment. In relying on this evidence, Mr. McGuire effectively

treats his ex post facto claim as an as-applied challenge in which he

can establish a constitutional violation through evidence about the

restrictions’ application solely to him. But the Supreme Court’s

decision in Young forecloses the as-applied avenue. The Court

made clear that we cannot evaluate whether a restriction is

punitive “by reference to the effect that [it] has on a single

individual.” Young, 531 U.S. at 262.

Setting aside evidence of the restrictions’ effects on Mr.

McGuire personally, we consider his other evidence. He argues

that the residency and employment restrictions effectively cast

registrants out of Montgomery because they make approximately

80 percent of the housing stock and 85 percent of the jobs off limits

to registrants.

The district court found that the residency and employment

restrictions seriously limit registrants’ housing and employment

options in Montgomery, and these findings are not clearly

because, even assuming Mr. McGuire could carry his burden by introducing

evidence only as to Montgomery, he failed to establish by the clearest proof

that the residency and employment restrictions exclude registrants from

Montgomery in a way that resembles banishment.

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15-10958 Opinion of the Court 47

erroneous given the evidence in the record. But even so, we cannot

say that Mr. McGuire established that the restrictions are so severe

that they resemble banishment and effectively cast registrants out

of the community. The evidence of record demonstrates that

registrants have remained able to find housing and jobs in

Montgomery. As the district court found, of the approximately 430

registrants in Montgomery, only three were homeless. This means

that more than 99 percent of the individuals required to register in

Montgomery were able to find housing. Approximately half of the

registrants in Montgomery were able to find jobs. And of the half

who were not working, the district court explained that some were

not actively seeking work (perhaps because they were retired,

attending school, or physically unable to work). The question is not

whether there are houses or jobs off-limits to registrants because of

the exclusion zones; the question is whether there are houses or

jobs sufficiently open to them notwithstanding the exclusion

zones. Obviously there are, and Mr. McGuire does not point to any

evidence that the available houses or jobs are so undesirable that

they should not be counted.

Nothing in ASORCNA bars registrants from going into

exclusion zones for any purpose besides employment or

establishing a residence, as defined in the statute. And ASORCNA

does not restrict registrants from going into non-exclusion zones as

much as they like, as long as they aren’t conducting an “overnight

visit” with a minor. See Ala. Code § 15-20A-4(14); id. § 15-20A-

11(d).

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48 Opinion of the Court 15-10958

ASORCNA does not banish registrants from the jurisdiction,

whether a city or a state, or “expel[] [them] from the community.”

Smith, 538 U.S. at 98. It does not cut them off from interacting with

other adults, or even with minors during the daytime. As the

district court explained, registrants are “not barred from

frequenting any part of the city during the day.” McGuire v.

Strange, 83 F. Supp. 3d 1231, 1253 (M.D. Ala. 2019) (emphasis

added). And “any part” includes all of the exclusion zones.

Registrants may enter the exclusion zones for any purpose

except residency or employment there, so long as they do not

exceed the specified frequency and duration limits. Mr. McGuire’s

evidence about the restrictions’ effects on housing and

employment prospects for registrants does not establish that

registrants are effectively cast out of Montgomery in a way that

resembles banishment. 27

27 We note the Sixth Circuit’s decision holding that a Michigan law establishing

exclusion zones for sex offenders resembled banishment. See Doe v. Snyder,

834 F.3d 696, 701–02 (6th Cir. 2016). But the Michigan law barred registrants

from engaging in a broader range of conduct in the exclusion zones. It

prohibited registrants not only from living or working in exclusion zones but

also from “loitering” in these areas. Id. at 698 (internal quotation marks

omitted). It also effectively barred registrants from working any job that

required “traveling from jobsite to jobsite” because “work will surely take

place within a school zone at some point.” Id. at 702. In contrast, ASORCNA

imposes no bar on loitering, and registrants may hold jobs that occasionally

require them to perform tasks inside, or to cross through, an exclusion zone.

Given the differences, even after considering the Sixth Circuit’s analysis, we

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b. Affirmative Disability or Restraint

We next ask whether the residency and employment

restrictions impose an affirmative disability or restraint. We accept,

and the Attorney General seems to concede, that these restrictions

impose some affirmative disability or restraint by limiting where

registrants may live or work.

In considering whether the legislative scheme imposes an

affirmative disability or restraint, we ask “how the effects of the

[law] are felt by those subject to it.” Smith, 538 U.S. at 99–100. If

the restraint imposed is only “minor and indirect, its effects are

unlikely to be punitive.” Id.

In Smith, the Court concluded that Alaska’s registration and

notification scheme imposed no affirmative disability or restraint.

The Court began by noting that because the scheme imposed no

physical restraint, it did not “resemble the punishment of

imprisonment, which is the paradigmatic affirmative disability or

restraint.” Id. The Court further concluded that the scheme did not

impose any other type of affirmative disability or restraint. It

explained that Alaska’s scheme “[did] not restrain activities sex

offenders may pursue” and left them “free to change jobs or

are not persuaded that Alabama’s residency and employment restrictions

resemble banishment. Cf. Shaw v. Patton, 823 F.3d 556, 567–68, 577 (10th Cir.

2016) (holding that a 2,000-foot residency restriction did not cause the plaintiff

to be “expelled from a community” although he was restricted from living in

some areas, and the statute also contained a 500-foot loitering provision).

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50 Opinion of the Court 15-10958

residences,” meaning they could “live and work as other citizens.”

Id. at 100–01. The Court determined that the record contained no

evidence that the Alaska Act had “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.” Id. at 100.

In this case, the district court found that ASORCNA’s

residency and employment restrictions imposed “direct . . .

restraints and disabilities.” McGuire, 83 F. Supp. 3d at 1258. But the

imposition of an affirmative disability or restraint “does not

inexorably lead to the conclusion that the government has imposed

punishment.” Hendricks, 521 U.S. at 363 (internal quotation marks

omitted). Rather, we must consider “the degree of the restraint

involved in light of the legislature’s countervailing nonpunitive

purpose,” meaning we also must consider “whether the law is

rationally connected to a nonpunitive purpose, and whether it is

excessive in relation to that purpose.” Doe v. Miller, 405 F.3d 700,

721 (8th Cir. 2005). As we explained, Mr. McGuire presented

evidence that the residency and employment restrictions impose

some housing and occupational disadvantages on registrants in

Montgomery by limiting where they can live and work. All

residency and employment restrictions do. But as we explain in

more detail below, ASORCNA’s residency and employment

restrictions are rationally connected to a nonpunitive purpose and

are not excessive in relation to that purpose. After weighing the

degree of disability imposed and the legislature’s nonpunitive

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15-10958 Opinion of the Court 51

purpose, we conclude that the affirmative disability or restraint

imposed by the residency and employment restrictions is not

sufficiently punitive to override the legislature’s expressed intent to

create a civil, nonpunitive scheme. See Shaw v. Patton, 823 F.3d

556, 570 (10th Cir. 2016) (concluding that Oklahoma’s 2,000-foot

residency restriction did “not amount to a disability or restraint

that has a punitive effect”).

c. Traditional Goals of Punishment

Mr. McGuire argues that the residency and employment

restrictions are punitive because they further two traditional goals

of punishment: deterrence and retribution. But the restrictions do

not have such a strong deterrent or retributive effect that it renders

them punitive.

Whether the statutory scheme “promotes the traditional

aims of punishment” is the third factor the Supreme Court

considered in Smith. 538 U.S. at 97. The traditional aims, or

theories, of punishment are deterrence and retribution. See

Hudson v. United States, 522 U.S. 93, 101 (1997).

The deterrence theory of punishment refers to “the

prevention of criminal behavior by fear of punishment.”

Deterrence, Black’s Law Dictionary (10th ed. 2014). The Supreme

Court’s decision in Smith tells us little about how to determine

whether a statutory scheme furthers deterrence. Alaska conceded

that its registration and notification scheme promoted deterrence,

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52 Opinion of the Court 15-10958

so the Court did not need to decide the question. Smith, 538 U.S.

at 102.

The residency and employment restrictions promote the

goal of deterrence, Mr. McGuire contends, by imposing an

additional penalty for past sex offenses and thus preventing future

crimes. We accept that the restrictions in some sense function as a

deterrent by preventing future crime. As the statutory text reflects,

the Alabama legislature intended the restrictions to protect

children by preventing future sex offenses, suggesting that the

legislature understood the restrictions would prevent, or deter,

future crimes. See Ala. Code § 15-20A-2(1), (5).

Even though the residency and employment restrictions

have some deterrent effect, we cannot say that they are so punitive

that they override the legislature’s intent to enact a civil scheme.

The registrants in Smith pointed to the concession that Alaska’s

scheme promoted deterrence to argue that the law was punitive.

But the Court rejected the argument as “prov[ing] too much.”

Smith, 538 U.S. at 102. Because “[a]ny number of governmental

programs might deter crime without imposing punishment,” the

Court cautioned, “[t]o 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.” Id. (alteration adopted) (internal quotation marks

omitted).

The retribution theory of punishment reflects that it is

“fitting and just that one who has caused harm to others should

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15-10958 Opinion of the Court 53

himself suffer for it.” Wayne R. LaFave, Substantive Criminal Law

§ 1.5(a)(6) (2d ed. 2003). “A statute is retributive if it is intended to

express condemnation for a crime and to restore moral balance.”

Shaw, 823 F.3d at 571.

Mr. McGuire argues that the residency and employment

restrictions advance the goal of retribution because the restrictions

“are not tailored to the crime, the offender, the victim, the length

of time since the crime, or any other metric,” and thus they must

be “a blunt and indiscriminate tool designed simply to punish

registrants for past offenses.” Appellant’s Suppl. Br. at 38.

The residency and employment restrictions in ASORCNA

may have a retributive effect, to some extent. The restrictions are

imposed on registrants solely because of their earlier criminal

convictions, prompting one court to infer that they reflect societal

condemnation for a registrant’s underlying crime. See Shaw,

823 F.3d at 571. But we find any expression of condemnation

insufficiently clear or strong to negate the legislature’s stated

nonpunitive intent.

The fact that the statutory scheme may have had a

retributive effect did not convince the Supreme Court in Smith that

the scheme was so punitive in effect that it overrode the

legislature’s civil intent. 538 U.S. at 102. Under Alaska’s registration

scheme, the scope of a registrant’s reporting requirement

depended solely on the nature of his underlying crime or crimes. A

person who committed a single, non-aggravated sex crime was

required to register annually as a sex offender for 15 years. Id. at 90.

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54 Opinion of the Court 15-10958

But a person who committed an aggravated sex offense, or two or

more sex offenses, was required to register quarterly as a sex

offender for life. Id. Because the duration of the duty to register

depended on the nature of the sex offender’s underlying crime

rather than an individualized assessment of the risk he posed, the

Ninth Circuit held that Alaska’s registration requirement had a

retributive purpose and was punitive in effect. Id. at 102.

The Supreme Court disagreed. It acknowledged that the

Alaska statute differentiated among registrants based on the nature

of the underlying criminal conduct—whether the offense was

aggravated or repeated. Id. Still, the Court determined that the

Ninth Circuit “was incorrect to conclude that the Act’s registration

obligations were retributive.” Id. The Court explained that the

registration requirement was “reasonably related to the danger of

recidivism” in a way that was “consistent with the regulatory

objective.” Id. The Court also recognized: “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.” Id. at 103. “The risk of recidivism posed by sex offenders

is frightening and high.” Id. (internal quotation marks omitted).

Although Alabama imposes the restrictions on registrants as

a class without making individualized risk assessments, following

Smith, we conclude that “[t]he Ex Post Facto Clause does not

preclude a State from making reasonable categorical judgments

that conviction of specified crimes should entail particular

regulatory consequences.” Id. As we explain below, the restrictions

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15-10958 Opinion of the Court 55

have a rational connection to a nonpunitive purpose and are not

excessive.

d. Rational Connection to a Nonpunitive Purpose

We next consider whether the residency and employment

restrictions lack a rational relationship to a nonpunitive purpose.

This inquiry is a most—if not the most—significant factor. Smith,

538 U.S. at 102. 28 In Smith, the Supreme Court held that this factor

was satisfied when the purpose of the sex offender registration and

notification legislation was to protect public safety by “alerting the

public to the risk of sex offenders in their community.” Id. at 102–

03 (alteration adopted) (internal quotation marks omitted). We

conclude that ASORCNA’s residency and employment restrictions

are likewise consistent with the nonpunitive purpose of promoting

public safety.

The Attorney General argues that the residency and

employment restrictions protect public safety because (1) sex

offenders are likely to commit future offenses against children, and

(2) the restrictions prevent future sex offenses against children by

keeping registrants away from children. Mr. McGuire disagrees

and says that the record evidence established that sex offenders

have lower recidivism rates than the Attorney General suggests

and that creating zones of exclusion does not actually protect

28We have described this factor “as the most ‘significant’ one in the ex post

facto analysis.” Waldman v. Conway, 871 F.3d 1283, 1294 (11th Cir. 2017)

(emphasis added) (quoting Smith, 538 U.S. at 102).

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56 Opinion of the Court 15-10958

children from future sex crimes. Importantly, though, with respect

to this factor, the question is not whether the weight of the

evidence shows that sex offenders are likely to recidivate or

whether residency and employment restrictions in fact prevent

future sex crimes. Instead, our inquiry is limited to whether it

would be rational for a legislature to draw these conclusions. Given

the narrow scope of our inquiry, we find a rational connection to a

nonpunitive purpose here.

To begin, we conclude it was rational for the Alabama

legislature to conclude that sex offenders pose a risk of committing

future sex crimes against children. The Attorney General points to

research in the record showing that sex offenders generally pose a

greater threat of committing future sex crimes than the general

population does, including research showing that sex offenders are

four times more likely than non-sex offenders to be rearrested for

a sex crime after release from prison.

Mr. McGuire responds that social science research in the

record indicates that sex offenders may have lower recidivism rates

than previously thought. But we need not resolve this dispute

about the relative rate of recidivism for sex offenders. Again, to

apply this factor, we simply ask whether it was rational for the

Alabama legislature to conclude that sex offenders are more likely

than the general population to commit future sex crimes. And

based on evidence in this record, we cannot say that it was

irrational.

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Mr. McGuire also argues that the residency and

employment restrictions lack a rational relationship to the State’s

legitimate purpose because, he asserts, registrants whose previous

crimes involved adult victims are unlikely to commit future sex

offenses against children. Record evidence reflects, however, that

sex offenders are not specialists with respect to the gender and age

of their victims. This is not to say that sex offenders whose prior

offenses involved adults pose the same risk of committing future

sex offenses against minors as do sex offenders whose prior offenses

involved minors. But, again, because there is some evidence that

adult sex offenders pose a greater threat to children than does the

general population, we cannot deem irrational the Alabama

legislature’s conclusion that children are protected by restraints on

sex offenders whose previous victims were adults.

Next, we consider whether residency and employment

restrictions are a reasonable way to protect children from future

sex offenses. The assumption underlying these restrictions is that

limiting registrants’ access to public areas that children frequent

will reduce crime. The Attorney General introduced into evidence

a study showing that removing registrants from the areas near

schools and childcare centers reduced crime. Mr. McGuire points

to other evidence showing that most sex crimes against children

are committed not by a stranger who happens to encounter a child

in public but instead by someone the child knows—which calls into

question whether broad exclusion zones actually protect children

from sex crimes. Mr. McGuire’s expert testified, and other evidence

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58 Opinion of the Court 15-10958

in the record supports, that there is no significant relationship

between a person reoffending and his proximity to schools or day

care.

The Attorney General presented evidence showing that

residency and employment restrictions reduce the risk of future

crimes, and we afford great deference to the Alabama legislature’s

statement in ASORCNA that it intended for the Act to protect

public safety, not to impose punishment. See Ala. Code §§ 15-20A-

2(1) (“[T]he number of sex offenders continues to rise. The

increasing numbers coupled with the danger of recidivism place

society at risk.”); 15-20A-2(3) (“Homeless sex offenders are a group

of sex offenders who need to be monitored more frequently for the

protection of the public. Homeless sex offenders present a growing

concern for law enforcement due to their mobility.”); 15-20A-2(5)

(noting that residency and employment restrictions “further[] the

primary governmental interest of protecting vulnerable

populations, particularly children”). Mr. McGuire failed to

establish by the clearest proof that the residency and employment

restrictions lack a rational connection to the nonpunitive purpose

of protecting the public. This factor weighs against finding that

these restrictions are punitive in effect.

e. Excessiveness

The final factor requires us to consider whether Mr.

McGuire has met his burden to show that ASORCNA’s residency

and employment restrictions are excessive. A restriction is not

excessive so long as the State has chosen a reasonable means to

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achieve its nonpunitive objective. See Smith, 538 U.S. at 105. In this

inquiry, we do not ask whether the legislature made the “best

choice possible” to achieve its nonpunitive aim. Id. As the Supreme

Court has cautioned, “[a] statute is not deemed punitive simply

because it lacks a close or perfect fit with the nonpunitive aims it

seeks to advance.” Id. at 103.

On appeal, Mr. McGuire argues that the residency and

employment restrictions are excessive for three reasons: (1) they

apply to all registrants for life; (2) other state laws are less severe;

and (3) the restrictions caused Mr. McGuire to be homeless and

unable to find a job. After considering these arguments, we

conclude that Mr. McGuire has not carried his burden.

First, Mr. McGuire argues that the residency and

employment restrictions are excessive because they apply to

registrants for life. We understand Mr. McGuire to be saying that

the restrictions are excessive because they apply to all registrants as

a class without any individualized risk assessment.

The Supreme Court rejected a similar argument in Smith.

The registrants argued that Alaska’s registration scheme was

excessive because it applied to all convicted sex offenders without

regard to their future dangerousness. Id. But the Court rejected this

argument, explaining that the Ex Post Facto Clause permits a State

to make “reasonable categorical judgments that conviction of

specified crimes should entail particular regulatory consequences”

and to “legislate with respect to convicted sex offenders as a class,

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rather than require individual determination of their

dangerousness.” Id. at 104.

We thus cannot say that the residency and employment

restrictions are excessive simply because Alabama applied them to

registrants as a class without making any individual determinations

about dangerousness. Importantly, as we explained above, the

legislature could reasonably try to advance its goal of protecting

the public by creating a categorical rule that subjects registrants to

residency and employment restrictions. See Part VI-B-1-c & d;

Shaw, 823 F.3d at 576 (holding that Oklahoma’s residency

restriction was not excessive even though it created “a categorical

rule for sex offenders”); Miller, 405 F.3d at 722 (rejecting argument

that Iowa’s residency restriction was excessive because it applied to

registrants as a class).

Second, Mr. McGuire argues that the residency and

employment restrictions are excessive when combined because

they are more severe than the restrictions imposed by other

states. 29 This argument rests on the premise that a state’s restriction

may be shown to be excessive merely because of its severity in

29 It appears that the other states’ laws that impose both residency and

employment restrictions establish smaller exclusion zones, which extend

between 300 and 1,000 feet around schools and daycare centers. See, e.g.,

O.C.G.A. § 42-1-15 (geographic residency and employment restrictions with

1,000-foot exclusion zones); Mont. Code Ann. § 45-5-513 (geographic

residency and employment restrictions for “high-risk sexual offender[s]” with

300-foot exclusion zones); Tenn. Code Ann. § 40-39-211 (geographic residency

and employment restrictions with 1,000-foot exclusion zones).

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relation to other states’ restrictions or because other states have

chosen less restrictive means to achieve their regulatory purpose.

But Mr. McGuire cites no authority holding that such a showing

satisfies a plaintiff’s burden. And we are not persuaded by this

argument, which seems in tension with the role of the states as

“laboratories for experimentation” that may “devise various

solutions where the best solution is far from clear.” United States

v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see

also Smith, 538 U.S. at 105 (explaining that “[t]he 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,” but instead

“whether the regulatory means chosen are reasonable in light of

the nonpunitive objective”).

Third, Mr. McGuire says the residency and employment

restrictions are excessive because of the difficulty he had finding a

job or a house outside the exclusion zones. With this argument Mr.

McGuire again seeks to establish that the residency and

employment restrictions are punitive in effect through evidence of

the law’s effect on himself alone. But, as we explained above,

Supreme Court precedent forecloses this argument. See Young,

531 U.S. at 262.

On the record before us, we conclude that Mr. McGuire did

not establish by the clearest proof that the residency and

employment restrictions are so punitive in purpose or effect that

they override the Alabama legislature’s stated nonpunitive intent.

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Accordingly, we affirm the district court’s determination that the

retroactive application of the residency and employment

restrictions does not violate the Ex Post Facto Clause.

2. Mr. McGuire Failed to Carry His Heavy Burden to Prove

that the Homeless Registration Requirement Is

Sufficiently Punitive in Purpose or Effect

Next, we address ASORCNA’s homeless-reporting

requirement. As a refresher, the Act requires homeless registrants

to report in person every week and to identify the locations where

they resided during the previous week and plan to reside in the

upcoming week. See Ala. Code § 15-20A-12(b), (d). After

considering the Mendoza-Martinez factors, we conclude that Mr.

McGuire failed to establish by the clearest proof that the homeless

registration restriction is so punitive in purpose or effect as to

negate the legislature’s intent to deem it civil.

a. Resemblance to a Traditional Punishment

Mr. McGuire argues that the homeless registration

requirement resembles the traditional punishment of probation or

parole. 30 We disagree.

30 Although in Smith the Supreme Court discussed parole, it did not consider

whether parole qualified as a traditional or historical punishment. See 538 U.S.

at 101–02 (considering whether reporting requirements imposed an

affirmative disability or restraint similar to probation or parole, not whether

probation or parole had been regarded in our history and tradition as a

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Probation and parole are closely related punishments.31

Individuals on probation and parole “do not enjoy the absolute

liberty to which every citizen is entitled, but only conditional

liberty properly dependent on observance of special probation [or

parole] restrictions.” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)

(alteration adopted) (internal quotation marks omitted). Probation

and parole involve a series of mandatory conditions, which may

include requiring a person to report regularly to law enforcement

and to comply with other conditions including maintaining

employment, obtaining consent from a probation or parole officer

before moving or changing jobs, and abstaining from drugs or

alcohol. See Shaw, 823 F.3d at 565. When a probationer or parolee

violates the conditions of his probation or parole, the supervising

officer seeks revocation in a proceeding that is part of the original

punishment). We assume for purposes of this appeal only that parole would

qualify as a traditional or historical punishment. See Shaw, 823 F.3d at 565.

31Parole refers to “[t]he conditional release of a prisoner from imprisonment

before the full sentence has been served” and generally requires “that the

parolee regularly report to a supervising officer for a specified period.” Parole,

Black’s Law Dictionary (11th ed. 2019). Probation refers to “[a] court-imposed

criminal sentence that, subject to stated conditions, releases a convicted

person into the community instead of sending the criminal to jail or prison,

usu[ally] on condition of routinely checking in with a probation officer over a

specified period of time.” Probation, Black’s Law Dictionary (11th ed. 2019).

Succinctly, “[p]arole is based on good conduct in the penitentiary while

probation is set as a substitute for incarceration.” 59 Am. Jur. 2d Pardon &

Parole § 8 (2016).

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64 Opinion of the Court 15-10958

offense. See Smith, 538 U.S. at 102; Griffin, 483 U.S. at 874; Black v.

Romano, 471 U.S. 606, 611 (1985).

It is certainly true that registrants, like probationers and

parolees, are subject to periodic reporting requirements. But

ASORCNA’s homeless registration requirement does not so

closely resemble probation or parole that “the public [would]

recognize” it as a punishment. Smith, 538 U.S. at 97. The homeless

registration requirement is markedly different from probation and

parole in two ways. First, the registration requirement is limited to

a reporting. It does not entail the type of supervision that is a

hallmark of probation and parole. Homeless registrants are not, for

example, required to maintain employment, obtain consent before

moving or changing jobs, or abstain from drugs or alcohol. Second,

the consequences of violating the homeless reporting requirement

are different from the consequences of probation and parole

violations. With probation and parole, a violator of a term or

condition of supervision may be imprisoned for the original crime.

See Romano, 471 U.S. at 609, 611. By contrast, if a homeless

registrant fails to comply with the weekly reporting requirement,

he may be subjected to a criminal prosecution for violation of

ASORCNA, separate and apart from his original offense. See Ala.

Code § 15-20A-12(f); see also Smith, 538 U.S. at 101–02.

b. Affirmative Disability or Restraint

The second factor requires us to consider whether the

homeless reporting requirement imposes an affirmative disability

or restraint. Even though the in-person weekly reporting

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requirement imposes an affirmative disability or restraint, we

cannot say that the requirement is punitive.

In assessing whether the weekly, in-person reporting

requirement imposes an affirmative disability or restraint, we look

to precedent addressing whether other sex offender registration

schemes imposed these burdens. In Smith, the Supreme Court held

that Alaska’s scheme requiring yearly or quarterly registration by

mail imposed no affirmative disability or restraint. 538 U.S. at 91,

100–101. Likewise, in W.B.H., we held that a federal law requiring

sex offenders to register in person four times per year imposed no

affirmative disability or restraint. See 664 F.3d at 857–58. Even

though the in-person reporting requirement was “inconvenient,”

we concluded that no affirmative disability or restraint resulted

because the quarterly in-person reporting requirement did not

prohibit registrants from changing residences, jobs, or student

status without prior approval and “only require[d] that changes be

reported.” Id. at 857.

The reasoning in Smith and W.B.H. perhaps suggests that

the homeless reporting requirement imposes no affirmative

disability or restraint. True, ASORCNA requires homeless

registrants to provide regular updates to law enforcement officers,

but they remain able to move into a fixed residence and to change

where they stay throughout the week without obtaining prior

approval. Still, ASORCNA’s weekly reporting requirement is more

burdensome than the registration schemes reviewed in Smith and

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66 Opinion of the Court 15-10958

W.B.H. because neither case considered a weekly reporting

requirement or its effect specifically on homeless individuals.

Given the reporting frequency, we are persuaded that the

homeless registration requirement imposes an affirmative

disability or restraint. But even considering this factor, we cannot

say that the homeless registration requirement is so punitive in

effect that it overrides the legislature’s nonpunitive intent. See

Hendricks, 521 U.S. at 363 (explaining that the imposition of an

affirmative disability or restraint does not necessarily mean that a

restriction is punitive). We must weigh the extent of the disability

or restraint that the weekly registration requirement imposes on

homeless registrants against the legislature’s nonpunitive purpose

of protecting the public. See Miller, 405 F.3d at 721. As we explain

below, the weekly registration requirement has a rational

connection to the nonpunitive purpose of protecting the public and

is not excessive in relation to that purpose. In the circumstances

before us, even though the law imposes an affirmative disability or

restraint, we conclude that it is not sufficiently punitive to negate

the legislature’s intent.

c. Traditional Goals of Punishment

Turning to the next factor, we ask whether the homeless

registration requirement furthers a traditional goal of punishment.

We see no sufficiently strong deterrent or retributive effect to

render the homeless registration requirement punitive.

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We accept that the requirement has a general deterrent

effect by potentially preventing future crime. Indeed, the Alabama

legislature expressly stated that it imposed the more frequent

reporting requirement for homeless registrants “for the protection

of the public,” Ala. Code § 15-20A-2(3), suggesting it understood

that the reporting requirement would prevent registrants who

were homeless from committing future crimes. But Smith

recognized that governmental programs might deter crime

without imposing punishment. 538 U.S. at 102. So it cannot be true

that the presence of some general deterrent effect establishes that

the registration requirement is punitive. Sex offender restrictions

and requirements generally are intended to protect the public by

reducing the number of future crimes that sex offenders commit.

If that made them punitive, none would survive judicial scrutiny.

See id. (“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.” (alteration

adopted) (internal quotation marks omitted)).

We agree with Mr. McGuire that, like the residency and

employment restrictions, the homeless registration requirement

furthers the goal of retribution to some extent. See Shaw, 823 F.3d

at 572. For a restriction to be so retributive that it constitutes

punishment, though, the statute’s effect must “lack[] a reasonable

relationship to non[]punitive objectives.” Id. As we explain when

we apply the next factor, the Alabama legislature could rationally

set out to protect public safety by requiring weekly registration

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68 Opinion of the Court 15-10958

from homeless registrants. In light of the rational connection

between the reporting requirement and protecting public safety,

this factor weighs against a finding of punitive effect.

d. Rational Connection to a Nonpunitive Purpose

Without a doubt, Alabama’s homeless registration

requirement has a rational connection to a nonpunitive purpose.

As the Supreme Court recognized in Smith, requiring registrants

to report to law enforcement is rationally connected to the

legitimate, nonpunitive purpose of promoting public safety. See

538 U.S. at 102–03. It therefore is rational for a state to require

registrants to report periodically to law enforcement to verify their

information as well as to report when information changes—for

example, after changing where they stay.

Relatedly, because homeless registrants lack a fixed address,

they may be more transient than other registrants. To ensure that

law enforcement and the public have accurate information about

these registrants’ whereabouts and to protect public safety, a state

legislature could rationally conclude that homeless registrants need

to report more frequently. See Ala. Code § 15-20A-2(3) (“Homeless

sex offenders . . . need to be monitored more frequently for the

protection of the public.”). Whether or not we agree with the

legislature’s conclusion, it was not an unreasonable one. See Shaw,

823 F.3d at 572.

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e. Excessiveness

As to the final factor, Mr. McGuire has not shown that the

reporting requirement is excessive. Given the requirement’s

rational connection to a nonpunitive purpose, Mr. McGuire bears

the burden to show that the requirement is nonetheless excessive

in relation to this purpose. But he does not argue that the frequency

or manner of reporting imposed upon homeless registrants—in-

person reporting once per week—is excessive in light of this

nonpunitive purpose. 32

On the record before us, we conclude that Mr. McGuire

failed to establish by the clearest proof that the weekly reporting

requirement for homeless registrants is sufficiently punitive to

negate the Alabama legislature’s stated intention to enact a civil

regulatory scheme. We thus affirm the district court’s judgment

32On appeal, Mr. McGuire focuses his argument on why it was excessive for

Alabama to require homeless registrants who live in cities to report in person

twice per week (once each week to city law enforcement and once each week

to county law enforcement). See Appellant’s Br. at 34 (arguing that the

homeless registrant requirement is excessive because, due to the dual

reporting requirement, “homeless registrants must also report twice per week,

amounting to a minimum of 112 registrations per year”). But the Alabama

legislature has removed the homeless registrants’ dual reporting requirement.

See 2015 Ala. Laws 463. As explained above, we limit our analysis to the

version of ASORCNA currently in effect, which requires homeless registrants

to report 56 times per year (four quarterly registrations and 52 weekly

registrations). See supra Section IV.

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that the weekly reporting requirement does not violate the Ex Post

Facto Clause.

3. Mr. McGuire Failed to Carry His Heavy Burden to Prove

that the Travel Notification Requirement Is Sufficiently

Punitive in Purpose or Effect 33

Next is ASORCNA’s travel notification requirement.

ASORCNA requires a registrant to provide notice to law

enforcement before he may “temporarily leave[]” his county of

residence for three or more consecutive days. Ala. Code § 15-20A-

15(a). After applying the Mendoza-Martinez factors, we conclude

that Mr. McGuire has failed to show by the clearest proof that this

requirement is punitive.

Mr. McGuire argues that the travel notification provision

resembles probation or parole because it (1) bars registrants from

spontaneous travel by requiring them to give notice at least three

business days before traveling and (2) requires registrants to

receive permission before traveling. But because ASORCNA, as

33 We continue to weigh the same factors to evaluate the remaining challenged

provisions. But because the parties’ arguments for each of the remaining

challenged provisions are less complex, we cease using separate subheadings

as we discuss each factor.

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amended, imposes neither restriction, we hold that it does not

resemble probation or parole. 34

First, Mr. McGuire contends that the travel notification

provision restricts registrants from any form of spontaneous travel

because they must notify law enforcement at least three business

days before traveling. But he slightly misreads ASORCNA with

respect to domestic travel. The law permits registrants to give

notice within three business days of such travel. Id. §§ 15-20A-4(9),

15-20A-15(a). Because a registrant may give notice immediately

before departing on a trip, we reject Mr. McGuire’s argument that

the provision resembles probation or parole by restricting

spontaneous travel.

Mr. McGuire also argues that because he must disclose in

advance where he will be staying, he cannot spontaneously decide

to stay at a different hotel or in a different town. Mr. McGuire

argues that innocuous changes in travel plans may trigger felony

violations. But barring registrants from making spontaneous

changes to their travel plans does not mean the travel notification

requirement resembles probation or parole. Only “knowing[]”

violations of the travel restrictions are punishable as felonies. Ala.

Code § 15-20A-15(h). Also, allowing a registrant to travel to a

destination different from the one disclosed in advance would

34 Aswe have mentioned, permission to travel is no longer required in light of

the 2017 amendments to ASORCNA, but notification of intent to travel is

required. See 2017 Ala. Laws 414.

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72 Opinion of the Court 15-10958

thwart the regulatory purpose of informing local authorities where

the registrant would be and allowing them to inform law

enforcement in that other location.

Mr. McGuire contends that the travel notification provision

resembles probation or parole because it requires registrants to

obtain permission from law enforcement before traveling. Under

the amended version of ASORCNA, however, no permission is

required. A registrant must report to his county sheriff to

“complete and sign a travel notification document” before

traveling outside his county of residence for three or more days. Id.

§ 15-20A-15(a). But ASORCNA gives the sheriff no discretion or

authority to forbid a registrant who completes the travel

notification form from leaving the county. Id. § 15-20A-15(a), (d).

Mr. McGuire’s argument that law enforcement might do so rests

on unfounded speculation. We therefore reject his argument that

this provision resembles probation or parole.

Turning to the second factor, the travel notification

provision places some burden on registrants by requiring them to

report in person before traveling. But because ASORCNA, in its

current form, requires registrants to report in person to law

enforcement only once before a trip, we cannot say that the

reporting requirement imposes a burden rising to the level of an

affirmative disability or restraint. See W.B.H., 664 F.3d at 857

(addressing why in-person reporting requirement did not impose

affirmative restraint).

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Now the third factor. Even if we assume that the travel

notification provision has some deterrent effect, that effect does

not make the provision punitive because the “mere presence” of a

deterrent effect does not make a statute punitive. See Smith,

538 U.S. at 102 (internal quotation marks omitted). Likewise, even

if the travel notification serves some retributive purpose, the

provision is not punitive because, as we conclude below, it has a

rational connection to a nonpunitive purpose and is not excessive.

See id.

As to the fourth factor, the travel notification requirement

has a rational connection to a nonpunitive purpose. The Attorney

General argues that requiring a registrant to report travel outside

the county “[e]ncourages personal contact with law enforcement”

and “[p]rovides for continuity of contact between jurisdictions.”

Appellees’ Br. at 47. In requiring registrants to disclose their travel

plans to law enforcement shortly before traveling, the provision

serves these rational purposes.

With respect to the final factor, the travel notification

provision is not excessive. The provision appropriately serves the

purpose of protecting public safety by requiring that registrants

give notice shortly before traveling, with some flexibility (within

three days) about when the notification must occur. Because the

scope of the restriction is “reasonable in light of the nonpunitive

objective,” Smith, 538 U.S. at 105, it is not excessive.

After considering the relevant factors, we conclude that Mr.

McGuire has failed to establish by the clearest proof that the travel

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74 Opinion of the Court 15-10958

notification restriction is so punitive in purpose or effect that it

overrides the legislature’s stated nonpunitive intent.

4. Mr. McGuire Failed to Carry His Heavy Burden to

Prove that the Direct Community Notification

Requirement Is Sufficiently Punitive in Purpose or Effect

The last provision of ASORCNA Mr. McGuire challenges is

the requirement that local law enforcement notify a registrant’s

neighbors that a sex offender plans to establish or has established a

residence nearby. Looking to the Supreme Court’s decision in

Smith, we conclude that Mr. McGuire has failed to show by the

clearest proof that this provision is punitive.

Mr. McGuire argues that the direct community notification

requirement resembles a traditional shaming punishment. Some

historical punishments, like forcing an offender to wear a sign

broadcasting his offense, were meant to inflict public disgrace. See

Smith, 538 U.S. at 97–98. The required community notification

bears at least an initial resemblance to traditional shaming

punishments. When a registrant establishes a new residence, local

law enforcement is to mail or hand deliver to a registrant’s

neighbors a flyer that discloses the registrant’s name, address,

photograph, and status as a sex offender. 35 See Ala. Code §§ 15-20A-

35 ASORCNA also provides for a second type of community notification

through the State’s maintenance of an online database for the public to access

information about registrants. See Ala. Code § 15-20A-8(a). The Supreme

Court held in Smith that including a registrant’s information in an online

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8(a), 15-20A-21(a), (b). We recognize that a registrant will likely

experience a degree of humiliation and public disgrace when these

flyers are distributed to his neighbors. See Smith, 538 U.S. at 98

(recognizing registrants may face stigma as a result of the public

being notified about their status as sex offenders).

But Smith is clear that our inquiry does not end there. Even

though the registrants in Smith experienced public stigma due to

being listed in Alaska’s internet database of sex offenders, the Court

concluded that Alaska’s community notification scheme did not

resemble a historical shaming punishment. Id. at 98–99. This was

because registrants were not subjected to “face-to-face shaming.”

Id. at 98. Instead, any stigma resulted solely “from the

dissemination of accurate information about a criminal record,

most of which is already public.” Id. The Court analogized the way

database did not resemble a historical shaming punishment. 538 U.S. at 99.

Smith compels us to conclude that this aspect of Alabama’s community

notification is nonpunitive.

At least one court has determined that community notification through an

internet registry database has a punitive effect. See, e.g, Commonwealth v.

Muniz, 164 A.3d 1189, 1212 (Pa. 2017) (holding that Pennsylvania’s

community notification requirements violated the Ex Post Facto Clauses of

the United States and Pennsylvania constitutions when registrants were listed

on a public internet website because the publication provision “when viewed

in the context of our current internet-based world [is] comparable to shaming

punishments”). But even after considering this decision, we conclude that

Alabama’s use of an online registry is not punitive.

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76 Opinion of the Court 15-10958

the public could access information in the database to “a visit to an

official archive of criminal records” because a member of the public

would receive information about a sex offender only after

voluntarily taking several steps, including “going to the

Department of Public Safety’s Web site, proceed[ing] to the sex

offender registry, and then look[ing] up the desired information.”

Id. at 99.

The Supreme Court’s decision in Smith does not answer

directly whether ASORCNA’s direct community notification

resembles public shaming.36 On the one hand, Smith’s discussion

of “face-to-face shaming” suggests that ASORCNA’s notification

36 Nor does our decision in W.B.H. answer whether Alabama’s direct

community notification provision resembles a historical punishment. In

W.B.H., an individual who was required under SORNA to register due to a

juvenile conviction for a sex offense claimed that SORNA’s community

notification requirement was punitive. 664 F.3d at 851. He argued that

including his information in a government sex offender database on the

internet resembled a traditional shaming punishment because his underlying

juvenile conviction for a sex offense was not a public record. Id. at 856. We

concluded that placing his information in a database would not subject him to

face-to-face public shaming. Id. We stated that “[e]ven if the fact that a person

had been convicted of a sex offense as a youthful offender were to be

permanently sealed under state law, dissemination of that truthful

information in a [] registry” would not be punitive. Id. Because W.B.H.

involved a challenge to a community notification scheme that involved

dissemination of information about registrants through an internet database

only, however, the opinion did not address whether direct community

notification in which the government, unsolicited, sends out information

about a registrant’s presence to his neighbors would resemble a traditional

shaming punishment.

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scheme does not resemble a historical punishment because a

registrant ordinarily is not present when his neighbors receive the

notice disclosing his status as a sex offender. Id. at 98. On the other

hand, other parts of Smith’s analysis suggest that ASORCNA’s

requirement does resemble public shaming. Direct community

notification under ASORCNA is substantially different from the

public’s searching out information either online or in a physical

archive because information about registrants is automatically sent

to their neighbors without requiring the neighbors to take any

steps to obtain the information. See Ala. Code § 15-20A-21(a). So,

the Court’s analogy in Smith does not hold here.

We leave the difficult question whether the Act’s

community notification requirement sufficiently resembles

historical shaming for another day, however. Even assuming that

it does, Mr. McGuire still has not met his heavy burden to show

that it is punitive in purpose or effect when we consider the other

factors.

For the second factor, the direct community notification

requirement does not impose an affirmative disability or restraint.

The Supreme Court told us in Smith that a community notification

provision “imposes no physical restraint.” 538 U.S. at 100. And

although community notification “may have a lasting and painful

impact on the convicted sex offender, these consequences flow not

from [ASORCNA’s] . . . dissemination provision[], but from the

fact of conviction, already a matter of public record.” Id. at 101.

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The third factor, too, weighs in the Attorney General’s

favor. Even if the community notification requirement has some

deterrent effect, some deterrent effect does not establish that the

measure is punitive. See id. at 102. And even if the community

notification requirement in some sense promotes retribution, this

factor on its own does not make the requirement punitive. See id.

It is beyond dispute that the direct community notification

provision meets the fourth factor, a rational connection to a

legitimate governmental purpose. It was rational for the Alabama

legislature to conclude that requiring law enforcement to notify

neighbors, schools, and childcare centers of a registrant’s presence

would serve the civil purposes of promoting public safety and

reducing recidivism.37 See Ala. Code § 15-20A-2(1) (“This release of

information creates better awareness and informs the public of the

presence of sex offenders in the community, thereby enabling the

public to take action to protect themselves.”). As the Supreme

Court said in Smith, such notification “has a legitimate nonpunitive

purpose of public safety, which is advanced by alerting the public

37 Some social science research in the record reflects that community

notification may reduce recidivism. At the same time, other research of record

suggests that community notification fails to reduce the recidivism rate for

registrants. At trial, Mr. McGuire’s expert discussed some evidence indicating

that notification can increase recidivism rates by making it more difficult for

registrants to find jobs and stable housing and to enter personal or business

relationships. We need not resolve the policy dispute about whether

community notification actually reduces recidivism because it was rational for

Alabama’s legislature to determine that it would.

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to the risk of sex offenders in their community.” 538 U.S. at 102–03

(alteration adopted) (internal quotation marks omitted).

Finally, considering the fifth factor, we conclude that the

means of notification Alabama has chosen—mailing and hand

delivering flyers identifying the registrant to nearby neighbors,

schools, and childcare centers—can reasonably be expected to

achieve Alabama’s nonpunitive objective of protecting the public.

There is no argument here that the direct community notification

requirement is excessive due to the formatting of the flyer or the

way that it displays information about the registrants. Indeed, a

flyer contains only factual information about a registrant, such as

his name, race, sex, date of birth, physical description, address, and

a brief description of his underlying offense. See Ala. Code §§ 15-

20A-8, 15-20A-21. The inclusion of this information is entirely

consistent with Alabama’s stated purpose: to inform the public

about the registrant’s presence in the community. See id. § 15-20A-

2(1).

After weighing the factors, we conclude that Mr. McGuire

failed to establish by the clearest proof that the direct community

notification requirement is so punitive in purpose or effect that it

overrides the Alabama legislature’s intent to create a civil

regulatory scheme. Even if we assume that the direct community

notification resembles a historical punishment, we hold that Mr.

McGuire failed to carry his heavy burden, particularly given the

community notification requirement’s rational connection to a

nonpunitive purpose that is not excessive in relation to that

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80 Opinion of the Court 15-10958

purpose. 38 Accordingly, we agree with the district court that the

retroactive application of the direct community notification

requirement does not violate the Ex Post Facto Clause.

VII. CONCLUSION

We VACATE the district court’s judgment insofar as it

involves Mr. McGuire’s claims that it is unconstitutional to apply

retroactively the following provisions of the Alabama Sex Offender

Registration and Community Notification Act, and REMAND

WITH INSTRUCTIONS that it dismiss those claims as moot: (1)

the identification-labeling requirement and (2) the dual registration

requirements for homeless registrants and for registrants providing

travel notification.

We AFFIRM the district court’s judgment insofar as it rejects

Mr. McGuire’s claims that it is unconstitutional to apply

retroactively the following provisions of ASORCNA: (1) the

residency and employment restrictions, (2) the homeless

registration requirement, (3) the travel notification requirement,

and (4) the community notification requirement. 39

38To the extent that it is necessary to do so, and we pass no judgment on

whether it is, we have also considered how the community notification

provision interacts with other provisions in ASORCNA and conclude that it is

not punitive in effect.

39Also pending before the Court is Mr. McGuire’s motion to dismiss the

Attorney General’s cross-appeal as moot. Because we have vacated and

remanded with instructions to dismiss as moot the part of the district court’s

judgment challenged in the cross-appeal, we DENY that motion.

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VACATED AND REMANDED IN PART, AFFIRMED IN

PART.