Amicus Curiae Brief — Smith v. Doe

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sLENN G. GODFREY AND BRUCE M. BOTELHO,

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Petitioners,

I, JANE DOE, AND JOHN DOE II,

Respondent

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On Writ Of Certiorari

To The United States Court Of Appeals

Per The Ninth Circuit

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BRIEF OF THE AMERICAN CiVIL LISERTIE

UNION, THE “ALASKA CIVIL LIBERTIES

UNION, AND THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

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JosHua L. DRATEL “VECCHIONE, P.C.

NATIONAL ASSOCIATION ~ One Riverfront Plaza

OF CRIMINAL DEFENSE<. - ‘Newark, New Jersey 07102

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TABLE OF CONTENTS

Page

yg og |... EE Eneenener ae iii

STATEMENT OF INTEREST ......................:scceeseseeees 1

STATEMENT OF THE CASB..........00..ccccccossccsssooeseees 3

SUMMARY OF ARGUMENT.....................ccceseeeeseeees 6

IEE cicsisinersiehennnretenntiinintititidnamntnicainiannnsmiuccniiines 7

THE NINTH CIRCUIT CORRECTLY DETER-

MINED THAT THE ALASKA LAW IS PUNI-

TIVE FOR PURPOSES OF THE EX POST

FACTO CLAUSE, NOTWITHSTANDING THE

LEGISLATURE’S ATTEMPT TO CHARACTER-

By Ge GD iO trericceccccernesessosocsoreensmimassepnernnnsenes 7

I. CONSISTENT WITH ITS HISTORICAL

FUNCTION OF PROTECTING AGAINST

ARBITRARY AND VINDICTIVE LEGISLA-

TION, THE EX POST FACTO CLAUSE RE-

QUIRES MEANINGFUL SCRUTINY OF

LEGISLATIVE ACTION .............cccsssssssseseseeees 10

A. The Court Has Never Applied the “Clear-

est Proof’ Standard in the Manner Ad-

I a Gr ee ienictitcrctnneticntsccnciescinie 11

B. The Deference Urged By the State is In-

consistent with the History and Purpose

of the Ex Post Facto Clause..................... 14

II. CONSIDERATION OF THE KENNEDY

FACTORS DEMONSTRATES THAT THE

ALASKA LAW IS PUNITIVE ..................::00000 17

A. The Majority, and the Most Important, of

the Kennedy Factors Weigh in Favor of

Finding the Alaska Law Punitive............ 18

ii

TABLE OF CONTENTS - Continued TABLE OF AUTHORITIES

Page Page

1. The Law Imposes an Affirmative Dis- Cosas

ability or Restraint..............cccccccceseeees 18 AA. v. New Jersey, 176 F.Supp. 2d 274 (D.NJ.

2. The Law Applies to Behavior That is a... scassssnssnnncsooscoooes 2

ASTOOET © COUIBD occcccssccisisaniee 21 Allen v. Illinois, 478 U.S. 364 (1986)....................... 8, 13, 14

3. The Law Serves the Traditional Aims Calder v. Bull, 3 Dall. 386 (1798) ............cccccccceeeeeeeees 15, 25

OS FRAG RERGIG 0..ciccccesceccensendmnnaene 21 California Dep't of Corrections v. Morales, 514 U.S.

4. The Law is Vastly Excessive in Rela- ITI cccereennncadcccccccccccococoooocecees 16

Soe ee in Public 99 Communist Party of the United States v. Subversive

B. The Remaining Factors tek le Activities Control Bd., 367 U.S. 1 (1961)... 13

weigh the Four Factors Supporting a eee Set Fee. Sapty ©. Des, S71 5:20 38

Punitive Intent or Effect ......................... 28 acca nscensnessenssoronccoooceces l

ee 30 -cosseeepehaetpeprenepenngyndiegpehegedpamenmammeanaaat ou

Cummings v. Missouri, 4 Wall. 277 (1866)...... 19, 20, 25, 27

De Veau v. Braisted, 363 U.S. 144 (1960) ........ 14, 19, 26, 27

Doe v. Otte, 259 F.3d 979 (9th Cir. 2001)................... passim

Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997)..............c000000 2

Doe v. Williams, 167 F. Supp. 2d 45 (D.D.C. 2001) ............ 2

E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997)...2, 11, 20, 29

: Fleming v. Nestor, 363 U.S. 603 (1960)................... passim

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).................. 14

| Foucha v. Louisiana, 504 U.S. 71 (1992) .........ccccccccceceeenes l

Ex Parte Garland, 4 Wall. 333 (1866).............0ccccccccceeeeees 27

. Hicks v. Feiock, 485 U.S. 624 (1988)................:6::008 13, 14

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

| James v. United States, 366 U.S. 213 (1961)................. 16

iv

TABLE OF AUTHORITIES - Continued

Page

Kansas v. Crane, 534 U.S. 407 (2002) ...........cccc cece 2, 25

Kansas v. Hendricks, 521 U.S. 343 (1997)................. passim

Kansas v. Myers, 260 Kan. 669, 923 P2d 1024

Gee cnrininentsiictiintsenatiarmentannineianaeneibiiiiia tiene ts 19, 24, 28

Kennedy v. Mendoza-Martinez, 372 U.S. 144

Cie hcncnanesenentuniennnvncunasinnindiioinesiiinhideesiamsisiiapuiiaiiepaiiidaes passim

Miller v. Florida, 482 U.S. 423 (1987) ............ccccccceecseeeeeees 14

Ross v. Massachusetts, 414 U.S. 1080 (1973)...............0... 20

Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997)........ 1, 23

Trop v. Dulles, 356 U.S. 86 (1958) ...............ccccceeeeeeeeees 19, 20

United States v. One Assortment of 89 Firearms,

es ee cirtitentnnccisenntinaianiiniinianiiniitsiiaattaa iia 13

United States v. Salerno, 481 U.S. 739 (1987) ..............000. 1

United States v. Ursery, 518 U.S. 267 (1996) .......... 2, 13, 26

United States v. Ward, 448 U.S. 242 (1980)........... 8, 9, 13, 26

Watts v. Indiana, 338 U.S. 49 (1949) ............ccccccccceseeseeeeees 21

Weaver v. Graham, 450 U.S. 24 (1981) ...........ccccccceeeees 15, 20

STATUTES AND RULES

Sy a Oe Gee icaccewititiiseteiestiientaniinnttenintimeiinemaend 3,4

ee ES 5

RE ee 5, 18

Ss DT crtsetcnicnntenntistniisiiitiainiinitecen 5, 21

Alaska Admin. Code tit. 13 § 09.050 .000..........ccccccccceeees 5, 24

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Alexander Hamilton, The Federalist No. 78 (Clinton

I I ar cemrceralmaislieneneleetie’ 16

Alexander Hamilton, The Federalist No. 84 (Clinton

SE i eee 15

Wayne A. Logan, Liberty Interests in the Preventive

State: Procedural Due Process and Sex Offender

Community Notification Laws, 89 J. Crim. L. &

Criminology 1167 (1999) ...........s:ccscseeesseseeeeeneseeensnneees 4

Wayne A. Logan, The Ex Post Facto Clause and the

Jurisprudence of Punishment, 35 Am. Crim. L.

ieee Tin CID... sat caeieatnatnenatninmedianimionsiates 15

James Madison, The Federalist No. 44 (Clinton

ON 15

Breck P. McAllister, Ex Post Facto Laws in the

Supreme Court of the United States, 15 Cal. L.

Ree, BED (1BB7) ...cccecceccereccecccosccsssscccccccsvccccscsesessonscsesecoes 15

Carol S. Steiker, Punishment and Procedure:

Punishment Theory and the Criminal-Civil

Procedural Divide, 85 Geo. L. J. 775 (1997)..............004 28

United States Dep't of Justice, Center for Sex

Offender Management, Community Notification

and Education (Apr. 2001)............ccc0:0:00+0 3, 4, 20, 22, 23

1

STATEMENT OF INTEREST

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with

nearly 300,000 members dedicated to preserving the

principles of liberty and equality embodied in the Consti-

tution and this nation’s civil rights laws. The Alaska Civil

Liberties Union is one of its state affiliates. The ACLU and

its affiliate maintain a strong and abiding interest in

defending fundamental civil liberties from unconstitu-

tional and unwarranted governmental intrusion.

This case raises constitutional issues of critical impor-

tance to the ACLU and its members, including the proper

meaning of the Ex Post Facto Clause and the distinction

between civil regulation and punishment. In furtherance

of its organizational views on these matters, the ACLU has

often appeared before this Court, both as direct counsel

and as amicus curiae. See, e.g., Kansas v. Hendricks, 521

U.S. 343 (1997); Foucha v. Louisiana, 504 U.S. 71 (1992);

United States v. Salerno, 481 U.S. 739 (1987).

In addition, the ACLU and its affiliates have served,

and continue to serve, as direct counsel and amici in

constitutional challenges to state sex offender and regis-

tration laws similar to the Alaska law at issue in this case.

See, e.g., Connecticut Dep't of Pub. Safety v. Doe, 271 F.3d

38 (2d Cir. 2001), cert. granted, 122 S.Ct. 1959, 70

U.S.L.W. 3561 (May 20, 2002) (No. 01-1231); Russell v.

‘ All parties have consented to the appearance of amici curiae in

this matter, and letters of consent have been lodged with the Clerk of

the Court. Pursuant to Sup. Ct. R. 37.6, counsel for amici state that this

brief was not authored in any part by counsel for any party. No person

or entity, other than amici and their counsel, made a monetary contri-

bution to the preparation and submission of this brief.

2

Gregoire, 124 F.3d 1079 (9th Cir. 1997); E.B. v. Verniero,

119 F.3d 1077 (3d Cir. 1997); Doe v. Pataki, 120 F.3d 1263

(2d Cir. 1997); AA v. New Jersey, 176 F. Supp. 2d 274

(D.N.J. 2001); Doe v. Williams, 167 F. Supp. 2d 45 (D.D.C.

2001), appeal held in abeyance pending this Court’s deci-

sion in Connecticut v. Department of Public Safety, 2002

WL 1298752 (D.C. Cir. June 12, 2002).

The National Association of Criminal Defense Law-

yers (“NACDL”) is a nationwide, non-profit voluntary

association of criminal defense lawyers founded in 1958 to

improve the quality of representation of the accused and to

advocate for the preservation of constitutional rights in

criminal cases. The NACDL has a membership of more

than 10,000 attorneys and 28,000 affiliate members in all

fifty states. The NACDL has filed briefs in many cases

before the Court involving the distinction between civil

regulation and punishment. See, e.g., Kansas v. Crane, 534

U.S. 407 (2002); Kansas v. Hendricks, 521 U.S. 343 (1997);

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

v. Ursery, 518 U.S. 267 (1996).

Amici file this brief to urge the Court to affirm the

decision of the United States Court of Appeals for the

Ninth Circuit holding that Alaska’s sex offender registra-

tion and community notification law (“ASORA”) violates

the Ex Post Facto Clause as applied to those who commit-

ted their crimes before it was enacted. And in so doing,

amici urge the Court to clarify its Ex Post Facto jurispru-

dence in a manner consistent with the Clause’s historical

purpose of protecting against arbitrary and vindictive

legislation targeted at society's least-favored persons.

+

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ee

3

STATEMENT OF THE CASE

In this case, the Court will review for the first time

the constitutionality of a state’s sex offender registration

and notification law. Commonly known as “Megan’s Laws,”

for Megan Kanka, the seven-year-old New Jersey girl

whose murder in 1994 by a convicted sex offender

prompted the enactment of New Jersey's sex offender

registration and notification law, these laws typically

require persons who have been convicted of a sex offense,

upon their release from custody, to provide the police with

such identifying information as their home addresses, a

recent photograph, and criminal histories. The laws then

authorize the police to disclose this information to mem-

bers of the public. All fifty states and the District of

Columbia have enacted Megan’s Laws. See United States

Department of Justice, Center for Sex Offender Manage-

ment, Community Notification and Education (Apr. 2001)

at 4, available at www.csom.org.

Pursuant to the Jacob Wetterling Crimes Against

Children and Sexually Violent Offender Registration Act of

1994 (“Wetterling Act”), 42 U.S.C. § 14071, the states are

required as a condition of receiving certain federal law

enforcement funds to implement a version of Megan’s Law

that meets certain minimum requirements. For example,

the Wetterling Act sets a floor for the types of offenders

who must be subject to registration, requiring that all

those convicted of a criminal sex offense against a minor,

and all persons convicted of a sexually violent offense, be

included in states’ registries. 42 U.S.C. § 14071(aX1). In

addition, the Wetterling Act requires, at a minimum, that

offenders provide the police with current addresses,

fingerprints, and photographs. 42 U.S.C. § 14071(b\1).

The Wetterling Act also sets minimum requirements for

the frequency and duration of registration. While the

4

majority of offenders must be required to verify their

addresses annually, those deemed “sexually violent preda-

tors” — 1.e., those convicted of a sexually violent offense

who suffer from a mental abnormality or disorder that

makes them likely to engage in predatory sexually violent

offenses, 42 U.S.C. § 14071(aX3\C) — must verify their

addresses quarterly. Jd. at § 14071(bX3). Furthermore,

offenders generally must remain registered for a minimum

of ten years; those who have been convicted of an aggra-

vated sexual offense, more than one covered offense, or

who are sexually violent predators must register for life.

Id. at § 14071(b\6). Finally, the Wetterling Act sets mini-

mum requirements for the extent of community notifica-

tion, requiring states to “release relevant information that

is necessary to protect the public concerning a specific

person required to register.” Jd. at § 14071(eX 2).

Thus, the Wetterling Act affords the states consider-

able discretion in designing their registration and notifica-

tion laws. For example, the states may expand the range

of offenses that subject persons to registration and notifi-

cation, the types of information required to be disclosed,

and the duration of the registration requirement. The

states also have discretion to determine how and to what

extent they will disclose the information contained in the

registry as “necessary to protect the public.” Jd. at

§ 14071(e)(2). Consistent with that discretion, the states

have enacted laws that differ as to each of these elements.

See Community Notification and Education at 4-9; Wayne

A. Logan, Liberty Interests in the Preventive State: Proce-

dural Due Process and Sex Offender Community Notifica-

tion Laws, 89 J. Crim. L. & Criminology 1167, 1175 (1999).

Alaska’s sex offender registration and notification act

(“ASORA” or “the Alaska law”) is at the extreme of states’

registration and notification laws in every respect. For

5

example, Alaska subjects to its registration and notifica-

tion laws not only those persons who have committed the

offenses specified in the Wetterling Act, but also those who

have committed less serious offenses such as indecent

exposure. Alaska Stat. § 12.63.100. It also imposes a

minimum 15 years’ reporting requirement, five years more

than the minimum required by the Wetterling Act. Jd. at

§ 12.63.010(d\1). In addition, Alaska requires offenders to

disclose, and makes available to the public, information

not enumerated in the Wetterling Act, such as date of

birth, work address, and motor vehicle information. Jd. at

§ 12.63.010. There is no effort to distinguish between

individuals who may pose a risk of future dangerousness

and those who do not. Under Alaska law, all persons

covered by the Act must provide the required information.

There is then no restriction on the use of the information

once it is submitted to the registry: ASORA’s implementing

regulations expressly provide that the information is

available “for any purpose, to any person.” Alaska Admin.

Code. tit. 13 § 09.050(a) (2000).

Indeed, to facilitate its scheme of unlimited notifica-

tion, Alaska has chosen to post its sex offender registry on

the Internet without any restrictions. Thus, anyone in the

world who has access to the Internet may view the infor-

mation contained in Alaska’s sex offender registry, without

even so much as submitting to the State a request to do so.

The Internet site can be searched “by name, partial

address, zip code or city,” and “includes the offender’s

name, color photograph, physical description, street

address, employer address and conviction information, all

under the banner ‘Registered Sex Offender.’” Doe v. Otte,

259 F.3d 979, 984 (9th Cir. 2001).

Upon passage of the ASORA, respondents John Doe I

and John Doe II, both of whom were required to register

under the law, brought an action under 42 U.S.C. § 1983 to

6

enjoin its enforcement, asserting among other claims that

the law violated the Ex Post Facto Clause. In 1985, nine

years before the ASORA was enacted, John Doe I had

entered a plea of nolo contendere to a charge of sexual

abuse of a minor after a court determined that he had

sexually abused his daughter. He was sentenced to twelve

years’ imprisonment. After being released in 1990, Doe I

was granted custody of his daughter, based upon a court’s

determination that he was rehabilitated. In 1985, John

Doe II entered a plea of nolo contendere to one count of

sexual abuse of a 14-year old child. He was sentenced to

eight years’ imprisonment. Upon his release in 1990, Doe

II completed a two-year program for the treatment of sex

offenders. Jd. at 983.

The district court granted summary judgment in favor

of the State, and the Does appealed. In an opinion filed on

April 9, 2001, and amended on Juiy 24, 2001 and August

9, 2001, the United States Court of Appeals for the Ninth

Circuit reversed, holding that the retroactive application

of the Alaska law violates the Ex Post Facto Clause.

+

SUMMARY OF ARGUMENT

The United States Court of Appeals for the Ninth

Circuit correctly applied this Court’s precedents to hold

that the application of Alaska’s sex offender registration

and notification law to the respondents violates the Ex

Post I .cto Clause of the United States Constitution.

Specifically, the Ninth Circuit correctly determined that

the respondents had established, by the “clearest proof,”

pursuant to Fleming v. Nestor, 363 U.S. 603 (1960), and

Hudson v. United States, 522 U.S. 93 (1997), that the law

was punitive notwithstanding the legislature’s attempt to

characterize it as civil. In so holding, the Ninth Circuit

—os

7

appropriately treated the legislature’s expressed remedial

intent not as “near-controlling,” as urged by the State, but

as a rebuttable presumption that was overcome by signifi-

cant indicia of a punitive intent or effect.

In finding that presumption overcome, the Court of

Appeals correctly found that four of the seven factors

articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963), weighed in favor of finding the law punitive. The

court attached particular significance to the seventh

factor, the statute’s excessiveness in relation to its non-

punitive purpose. For the reasons set forth below, the

court was correct to do so, in light of the historical con-

cerns of the Ex Post Facto Clause and this Court’s analysis

in its seminal ex post facto cases. Although this factor

alone would not necessarily be sufficient to warrant a

finding that the law is punitive, when combined with the

three other factors that weigh in favor of a punitive effect,

it amply justifies the conclusion that the ASORA is puni-

tive. Accordingly, the statute may not, consistent with the

Ex Post Facto Clause, be applied retroactively to those

whose crimes predate its enactment.

¢

ARGUMENT

THE NINTH CIRCUIT CORRECTLY DETER-

MINED THAT THE ALASKA LAW IS PUNI-

TIVE FOR PURPOSES OF THE EX POST

FACTO CLAUSE, NOTWITHSTANDING THE

LEGISLATURE’S ATTEMPT TO CHARAC-

TERIZE IT AS CIVIL.

In analyzing the respondents’ claim that the Alaska

law violates the Ex Post Facto Clause, the Ninth Circuit

applied the two-part “intent-effects” test that this Court

has established for determining whether a measure

8

imposes “punishment” for purposes of triggering the

protections of the Fifth and Sixth Amendments and,

recently, the Ex Post Facto Clause. See, e.g., Hudson v.

United States, 522 U.S. 93, 99 (1997) (Double Jeopardy

Clause of Fifth Amendment); Kansas v. Hendricks, 521

U.S. 346, 361 (1997) (Double Jeopardy and Ex Post Facto

Clauses); Allen v. Illinois, 478 U.S. 364, 368-369 (1986)

(Self-Incrimination Clause of Fifth Amendment); United

States v. Ward, 448 U.S. 242, 248-49 (1980) (Fifth and

Sixth Amendments generally). Pursuant to this test, the

Court “must initially ascertain whether the legislature

meant the statute to establish ‘civil’ proceedings.”

Hendricks, 521 U.S. at 361. This inquiry asks whether the

legislature either “expressly or impliedly” indicated a prefer-

ence for a civil or criminal label. Ward, 488 U.S. at 248.

If the legislature indicates a preference for a criminal

label, then the inquiry is at an end and the pertinent

protections of the Constitution apply. However, if the

legislature indicates a preference for a civil label, then the

Court must proceed to the second part of the inquiry.

Under this second prong, the Court must determine

whether the measure is “‘so punitive either in purpose or

effect as to negate [the State’s] intention’ to deem it ‘civil.’”

Hendricks, 521 U.S. at 361 (quoting Ward, 448 U.S. at

248-249).

In performing the assessment required under the

second step of the “intent-effects” test, the Court has

directed that the seven factors catalogued in Kennedy v.

Mendoza-Martinez, 372 U.S. at 168-169, and culled from

cases addressing whether a law is “punishment” for

purposes of the Fifth, Sixth, and Eighth Amendments, and

the constitutional prohibition against bills of attainder

and ex post facto laws, should be taken into account. See

Kennedy, 372 U.S. at 168 and nn. 22-28. These are:

9

(1) “[wJhether the sanction involves an affirma-

tive disability or restraint”; (2) “whether it has

historically been regarded as punishment”; (3)

“whether it comes into play only on a finding of

scienter”; (4) “whether its operation will promote

the traditional aims of punishment - retribution

and deterrence”; (5) “whether the behavior to

which it applies is already a crime”; (6) “whether

an alternative purpose to which it may rationally

be connected is assignable for it”; and (7)

“whether it appears excessive in relation to the

alternative purpose assigned.”

Hudson, 522 U.S. at 99 (quoting Kennedy, 372 U.S. at 168-

69). Although the Court has repeatedly characterized

these factors as only “useful guideposts,” which are neither

“exclusive nor dispositive,” Ward, 448 ').S. at 249, and has

recognized that the factors “‘often point in differing

directions,” Hudson, 522 U.S. at 101 (quoting Kennedy,

372 U.S. at 169), it has not provided guidance as to the

relative weight to be afforded to each of the factors. The

Court has advised, however, that no one factor is determi-

native. Hudson, 522 U.S. at 101. It has further advised

that the legislature’s characterization of a measure as civil

will only be overcome by the “clearest proof” that the

measure is in fact punitive. Hendricks, 521 U.S. at 361;

Ward, 448 U.S. at 242; Fleming, 363 U.S. at 603.

In this case, the Ninth Circuit found that the Alaska

legislature had expressed a preference for a civil label for

the ASORA and that the legislature acted with a non-

punitive intent. Doe, 259 F.3d at 986. Nevertheless,

applying the Kennedy factors, the court found the “clearest

proof” that the measure was punitive. Specifically, the

court determined that four out of seven of the Kennedy

factors weighed in favor of finding the measure punitive:

that the measure imposed an affirmative disability or

10

restraint; that it furthered the traditional aims of punish-

ment, retribution and deterrence; that it applied to behav-

ior that was already a crime; and that it was excessive in

relation to the alternative purposes assigned, public safety.

See Doe, 259 F.3d at 987-992. The court of appeals afforded

particular significance to the last factor, the excessiveness

of the measure. Taking these four factors together, the

court of appeals held that they outweighed the three

factors pointing toward a non-punitive effect and provided

the “clearest proof” necessary to overcome the legislature’s

stated remedial intent. For the reasons set forth below, the

Ninth Circuit’s decision should be affirmed.

I. CONSISTENT WITH ITS ' HISTORICAL

FUNCTION OF PROTECTING AGAINST AR-

BITRARY AND VINDICTIVE LEGISLATION,

THE EX POST FACTO CLAUSE REQUIRES

MEANINGFUL SCRUTINY OF LEGISLATIVE

ACTION.

The State quarrels with the standard of proof applied

by the court of appeals in its consideration of whether the

legislature’s characterization of the measure as remedial

was overcome. Specifically, the State contends that,

although the Ninth Circuit identified the correct standard

— “the clearest proof” — it erred in its application of that

standard, by failing to treat the legislature’s stated intent

as “near-controlling.” State’s Br. at 20. Pointing out that

this Court has “never found a law enacted with non-

punitive intent to violate the Ex Post Facto Clause in light

of the Mendoza-Martinez factors,” State’s Br. at 32, 2, the

State argues that the “clearest proof” of a punitive effect

will almost never exist, and was not established in this

case. State’s Br. at 22 (“once it is determined that the

legislature intended a civil goal, the ex post factoinquiry

ll

is at an end — except in those truly exceptional circum-

stances where there is the clearest proof that the legisla-

ture’s expressed purpose is just a charade for punitive

goals”). The State is wrong.

A. The Court Has Never Applied the “Clear-

est Proof” Standard in the Manner Ad-

vanced by the State.

The State’s characterization of the legislature’s stated

intent as “near-controlling” misconstrues the “clearest

proof” standard. The phrase, which traces back to the

Court’s decision in Fleming v. Nestor, 363 U.S. 603, 617

(1960), does not create a “near-controlling” presumption

that a statute is remedial. Rather, it simply restates the

usual rule that statutes are entitled to a presumption of

constitutionality, and that mere conjecture as to illicit

motives is not sufficient to overcome that presumption. See

E.B. v. Verniero, 119 F.3d 1077, 1128 (3d Cir. 1997)

(Becker, J., dissenting) (noting that presumption is “con-

sistent with familiar canons of statutory interpretation

and constitutional adjudication stating that legislatures

are rational bodies that intend to function within their

powers to enact lawful measures”).

Although the State relies on the Court’s never having

found the “clearest proof” standard met as evidence of the

standard’s rigor, in fact the Court has not applied the

“clearest proof” standard in a manner consistent with the

State’s characterization of it here. See Hudson, 522 U.S. at

115 (Breyer, J., concurring) (explaining that the limitation

suggested by the “clearest proof” language is “misleading,”

and “is not consistent with what the Court has actually

done”). To the contrary, each time the Court has invoked

the “clearest proof” standard, it has “simply applied

factors of the Kennedy variety to the matter at hand,” id.,

12

and found that these factors did not persuasively demon-

strate a punitive intent or effect. Thus, the Court has yet

to decide a case in which, on account of the “clearest proof”

standard, it held non-punitive a measure for which there

were significant objective indicators of a punitive intent or

effect.

For example, in Fleming, the first case to mention a

“clearest proof” standard, the Court found no objective

indications of a punitive intent. At issue in Fleming were

amendments to the Social Security Act which terminated

benefits to the vast majority of aliens deported. Nestor,

who was deported on account of his past membership in

the Communist Party, argued that the termination of his

benefits violated the Ex Post Facto and Bill of Attainder

Clauses. Examining the statute’s language and structure,

and the nature of the deprivation imposed, the Court

found no evidence of a punitive design. 363 U.S. at 616-17.

However, urged by Nestor to look to the statute’s legisla-

tive history for evidence of a purpose to punish those who

were members of the Communist Party, the Court warned

that “slight implication” and “vague conjecture” would not

be sufficient. Jd. at 617. It was in this context - warning of

the “dubious” nature of “[jjudicial inquiries into Congres-

sional motives” — that the Court stated that “only the

clearest proof would suffice to establish the unconstitu-

tionality of a statute” on the grounds of illicit legislative

motives. Jd. When the Court finally considered the legisla-

tive history of the Social Security Act modifications, it

found no support for Nestor’s claim that they were in-

tended to reach persons, like him, based upon past mem-

bership in the Communist Party. Jd. at 619. Thus, Fleming

provides no support for the State’s assertion that even

strong proof of a punitive intent or effect should be essen-

tially ignored whenever the State chooses to attach a civil

label to one of its laws.

13

Similarly, in each case since Fleming invoking the

“clearest proof” standard, the Court has found little

evidence of a punitive intent or effect. In two cases, the

Court found that two of the Kennedy factors provided mild

support for a punitive intent or effect. See Hudson, 522

U.S. at 104 (civil fines applied to conduct that was also

criminal and served some deterrent purpose); United

States v. Ursery, 518 U.S. 267, 292 (1996) (same as to civil

forfeiture sanctions). In the remaining decisions, the Court

found that one or no factors provided such support. See

Kansas v. Hendricks, 521 U.S. 346, 361-63 (1997) (one

factor: civil confinement imposed “affirmative disability or

restraint”); Allen v. Illinois, 478 U.S. 364, 269 (1986) (no

factors weighed in favor of finding civil contempt provi-

sions punitive); United States v. One Assortment of 89

Firearms, 465 U.S. 354, 365 (1984) (one factor: civil

forfeiture sanctions applied to behavior that was already a

crime); United States v. Ward, 448 U.S. 242, 250 (1980)

(same as to civil fine).’ Accordingly, the “clearest proof”

' In two additional cases, the Court also found little evidence to

establish the “clearest proof” of a punitive intent or effect, although it

did not express its decision in terms of the Kennedy factors. In Commu-

nist Party of the United States v. Subversive Activities Control Board

367 U.S. 1 (1961), the Court considered whether provisions of the

Subversive Activities Control Act requiring “Communist-action

organizations” to register with the Government imposed an unconstitu-

tional Bill of Attainder. The Court found no evidence that the provisions

cual eal cates Gn an cuits .

367 U.S. at 83-86. Similarly, in Hicks v. Feiock, 485 U.S. 624 (1988), the

Court remanded for further proceedings to determine whether con-

tempt proceedings against a father for failure to pay child support were

civil or criminal. Addressing at the outset the father’s contention that

they were criminal, the Court stated that “one who challenges the

State's classification of the relief imposed as ‘civil’ or ‘criminal’ may be

required to show ‘the clearest proof’ that it is not correct as a matter of

(Continued on follewing page)

14

standard has never actually been applied in a case where

there was substantial evidence pointing toward a punitive

intent or effect. There is, therefore, nothing in this Court’s

past cases to suggest that the standard was designed to be

the nearly insurmountable hurdle depicted by the State,

as opposed to a restatement of the usual presumption of

constitutionality to which statutes are entitled.’

B. The Deference Urged By the State is In-

consistent with the History and Purpose

of the Ex Post Facto Clause.

The “near-controlling” deference urged by the State is

not only inconsistent with what the Court has actually

done in prior cases, it is also inconsistent with the histori-

cal purpose of the Ex Post Facto Clause which was to

“prevent{] legislative abuses” like “arbitrary or vindictive

lawmaking.” Miller v. Florida, 482 U.S. 423, 429 (1987).

See also Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1810)

(stating that the Ex Post Facto Clause checks the “violent

federal law.” Id. at 631 (citing Allen v. Illinois, 478 U.S. 364, 368-69

(1986)). The Court continued, however, “[njonetheless, if such a

challenge is substantiated, then the labels affixed either to the proceed-

ing or to the relief imposed under state law are not controlling and will

not be allowed to defeat the applicable protections of federal constitu-

tional law.” Id.

* That the Court did not intend in Fleming to announce a new,

more rigorous standard for proving claims under the Ex Post Facto

Clause is underscored by the fact that in another case arising under the

Ex Post Facto and Bill of Attainder Clauses decided just two weeks

before Fleming, De Veau v. Braisted, 363 U.S. 144 (1960), the Court

made no mention of a “clearest proof” standard. Moreover, the language

of Fleming does not reveal an intention to create a new, higher standard

of proof or to depart from the traditional Ex Post Facto or Bill of

Attainder analysis.

15

acts which might grow out of the feelings of the moment”);

James Madison, The Federalist No. 44 at 282 (Clinton

Rossiter ed. 1961) (“Ex Post Facto laws ... are contrary to

the first principles of the socia’ compact, and to every

principle of sound legislation.”); Alexander Hamilton, The

Federalist No. 84 at 511 (Clinton Rossiter ed; 1961) (char-

acterizing the bar against Ex Post Facto laws as among

the three “greate([st] securities to liberty and republican-

ism” in the Constitution); Breck P. McAllister, Ex Post

Facto Laws in the Supreme Court of the United States, 15

Cal. L. Rev. 269, 269 (1927).

The basis for the Framers’ hostility to ex post facto

laws was two-fold. First, the Framers knew from experi-

ence that ex post facto laws were unfair “because they

deprive citizens of notice of wrongfulness of behavior, and

thus result in unjust deprivations.” Wayne A. Logan, The

Ex Post Facto Clause and the Jurisprudence of Punish-

ment, 35 Am. Crim. L. Rev. 1261, 1276 (1998). Second, the

Framers knew that ex post facto laws frequently were the

product of “arbitrary and vindictive lawmaking.” Weaver v.

Graham, 450 U.S. 24, 29 (1981) (citing cases). As Chief

Justice Marshall explained in Calder v. Bull, 3 Dall. 386

(1798), the Court’s seminal case on the Ex Post Facto

Clause:

The prohibition against [the states’) making any

ex post facto laws ... very probably arose from

the knowledge that the Parliament of Great

Britain claimed and exercised a power to pass

such laws. ... With very few exceptions, the ad-

vocates of such laws were stimulated by ambi-

tion, or personal resentment, and vindictive

malice. To prevent such, and similar, acts of vio-

lence and injustice, I believe, the Federal and

State Legislatures, were prohibited from passing

any bill of attainder; or any ex post facto law.

3 Dall. at 389.

16

Consistent with the constitutional function of the Ex

Post Facto Clause as a check against arbitrary and vindic-

tive lawmaking, the Court has historically approached

legislation challenged under the Ex Post Facto Clause

with skepticism rather than deference. As the second

Justice Harlan commented, “the policy of the prohibition

against ex post facto legislation would seem to rest on the

apprehension that the legislature in imposing penalties on

past conduct ... may be acting with a purpose not to

prevent dangerous conduct generally but to impose by

legislation a penalty against specific persons or classes of

persons.” James v. United States, 366 U.S. 213, 247 n.3

(1961) (Harlan, J., concurring in part and dissenting in

part). See also California Dep’t of Corrections v. Morales,

514 U.S. 499, 522 (1995) (Stevens, J., dissenting) (the

“concerns that animate the Ex Post Facto Clause demand

enhanced, and not .. . reduced, judicial scrutiny.”); Hamil-

ton, The Federalist No. 78 at 466 (Clinton Rossiter ed.

1961) (limitations on the legislative authority such as the

Ex Post Facto Clause “can be preserved in practice no

other way than through the medium of courts of justice,

whose duty it must be to declare all acts contrary to the

manifest tenor of the Constitution void”).

Accordingly, the “near-controlling” deference urged by

the State to the legislature’s characterization of a measure

as civil is unsupported by what the Court has actually

done in prior cases applying the “clearest proof” standard,

and inconsistent with this Court’s traditional approach in

ex post facto cases. Indeed, to adopt such a deferential

position would be to break faith with the historical role of

the Ex Post Facto Clause as an important guardian

against arbitrary and vindictive legislation. The court of

appeals therefore did not err in its application of the

“clearest proof” standard, but applied that standard in a

17

manner consistent with its prior application by this Court

and the purposes of the Ex Post Facto Clause.

II. CONSIDERATION OF THE KENNEDY FAC-

TORS DEMONSTRATES THAT THE ALASKA

LAW IS PUNITIVE.

The seven factors set forth in Kennedy v. Mendoza-

Martinez give shape and content to the “clearest proof”

standard. They assume that a court will give appropriate

respect to a legislature’s characterization of a challenged

law as civil, but not biind deference to what can on occa-

sion be a self-serving label. They also provide a framework

designed to guide a court through a careful assessment of

a law’s actual purpose and effect.

Here, a majority of the Kennedy factors support the

conclusion that the ASORA has a predominantly punitive

effect and therefore violates the Ex Post Facto Clause. In

reaching that conclusion, however, the court of appeals did

not engage in a mere arithmetical exercise. Instead, it

properly recognized that the relative weight assigned to

each of the Kennedy factors must necessarily be deter-

mined by the history and purpose of the Ex Post Facto

Clause. Doe, 259 F.3d at 944 n.12. The ASORA is unconsti-

tutional, then, not only because it fails under most of the

Kennedy factors, but because it fails under the most

important.

18

A. The Majority, and the Most Important, of

the Kennedy Factors Weigh in Favor of

Finding the Alaska Law Punitive.

1. The Law Imposes an Affirmative Dis-

ability or Restraint.

First, the law imposes an “affirmative disability or

restraint.” The Ninth Circuit found that both the registra-

tion and notification aspects of the law contributed to the

disability: the registration provisions because of their

onerous reporting requirements, and the notification

provisions because they were likely to render respondents

“completely unemployable,” and subject them to “world-

wide obloquy and ostracism.” Jd. at 988, 994. The Ninth

Circuit’s conclusions as to the registration provisions

turned in part on its understanding that registrants were

required to report to police stations in person to fulfill

their reporting obligations, id. at 987 — a fact that the

State vigorously disputes, even as it acknowledges respon-

sibility for the Ninth Circuit’s understanding. State’s Br.

at 39.

Regardless of whether the reporting must be done in

person or not, the ASORA’s registration requirements

plainly restrain respondents’ liberty. Respondents are not

free to go about their lives as they choose, contra State’s

Br. at 38, but must report to the police on a quarterly or

annual basis, more frequently if they change jobs or their

residence, for a minimum of fifteen years. Alaska Stat.

§ 12.63.010. Failure to comply with these requirements is

a criminal offense. Thus, by any reasonable interpretation

of the term, respondents are subject to a “restraint” upon

their liberty.

Even more significant, however, are the effects of the

ASORA’s notification provisions. By disclosing offenders’

work addresses — a detail not required by the Wetterling

"are

19

Act, see supra at 3 — the law “creates a substantial prob-

ability that registrants will not be able to find work,

because employers will not want to risk loss of business

when the public learns that they have hired sex offenders.”

Doe, 259 F.3d at 988. As the Supreme Court of Kansas

observed in considering a similar notification law, “(t]he

practical effect of such unrestricted dissemination could

make it impossible for the offender to find housing or

employment.” Kansas v. Myers, 260 Kan. 669, 923 P.2d

1024, 1041 (1996).

The impact of these disclosures upon offenders’ ability

to find work is unquestionably an affirmative disability or

restraint by any reasonable definition of these terms.

Registrants’ ability to work is impaired not only with

respect to a single industry, see Hudson, 522 U.S. at 105;

De Veau, 363 U.S. 144, but with respect to all possible

means of support. The State’s response — effectively, that

any sanction short of imprisonment can never constitute

an affirmative disability or restraint, State’s Br. at 42 — is

supported by neither logic nor precedent. Although the

Court has frequently repeated the phrase from Fleming

that the “infamous punishment of prison,” Fleming, 363

U.S. at 617, is an example of an affirmative disability or

restraint, see, e.g., Hudson, 522 U.S. at 104, its decisions

make clear that other sanctions may constitute affirmative

disabilities or restraints. See Kennedy, 372 U.S. at 170

(denaturalization); Trop v. Dulles, 356 U.S. 86, 102 (1958)

(same). See also Cummings v. Missouri, 4 Wall. 277 (1866)

(loss of ability to work in any profession). So, here too, the

impact of the notification provisions of the ASORA upon

registrants’ ability to maintain employment constitutes an

affirmative disability or restraint.

Similarly, the notification provisions’ exposure of

registrants to myriad forms of discrimination, harassment,

and physical danger in their homes and in their daily lives

20

constitutes an affirmative disability or restraint.‘ Even if

such consequences do not materialize for every offender,

all offenders must live with the constant threat of them,

which in turn impairs their ability to become rehabilitated

and reintegrated into society. See E.B., 119 F.3d at 1102

(registrants “justifiably” live in fear of vigilantism); Com-

munity Notification and Education at 15. These forms of

discrimination and harassment, and the threat of them,

are additional disabilities imposed by the law. See Trop,

356 U.S. at 102 (the “fate of ever-increasing fear and

distress” imposed by denaturalization is punitive, even if

“all of the disastrous consequences of this fate may not be

brought to bear” on a particular person).

Moreover, these disabilities are no less attributable to

the ASORA because they require actions by third parties

to have their full effect. See Kennedy, 372 U.S. at 160

(“grave practical consequences” of loss of citizenship

rendered denationalization punitive). As the Court stated

in Cummings, “the Constitution deals with substance, not

shadows. Its inhibition was levelled at the thing, not the

name.” 4 Wall. at 324. See also Weaver v. Graham, 450

U.S. at 31 (quoting Cummings). “(W]e are not required to

shut our eyes as judges to what we must all know as men.”

Ross v. Massachusetts, 414 U.S. 1080, 1085 (1973). See

also Culombe v. Connecticut, 367 U.S. 568, 606 (1961);

* See Community Notification and Education at 13-14 (collecting

instances of vigilantism as a consequence of notification); E.B., 119 F.3d

at 1102 (record demonstrated that registrants had lost employment and

employment opportunities, and housing and housing opportunities, as a

consequence of notification, and suffered retribution by private unlaw-

ful violence and threats). See also Amicus Brief of the Public Defender of

New Jersey (documenting incidents of vigilantism against sex offenders

in New Jersey since the inception of Megan’s Law).

21

Watts v. Indiana, 338 U.S. 49, 52 (1949). It simply defies

human experience, including the actua! experience in the

states that have implemented such laws, to suggest that

putting comprehensive identifying information about sex

offenders — including where they live, where they work,

their physical descriptions, and their criminal histories —

in the hands of the public will not cause the offenders to be

shunned, put considerable pressure on their employers to

let them go, and expose them to grave harm.

Accordingly, the disabilities imposed by the notifica-

tion provisions of the ASORA are directly attributable to

the law and, combined with the registration requirements,

unmistakably impose an affirmative disability or re-

straint.

2. The Law Applies to Behavior That is

Already a Crime.

Second, the law applies to behavior that is already a

crime. See Doe, 259 F.3d at 991. A prerequisite to applica-

tion of the ASORA is conviction for one of the criminal

offenses set forth in the statute. Alaska Stat. § 12.63.100(5).

The State and its amici do not contend otherwise. Thus,

this Kennedy factor also weighs in favor of a punitive effect.

38. The Law Serves the Traditional Aims

of Punishment.

Third, the Alaska law serves the traditional goals of

punishment, i.e., deterrence and retribution. As the Ninth

Circuit held, “the threat of being subjected to mandatory

registration and, particularly, publicly branded a sex

offender, may presumably deter some persons who might

otherwise become offenders.” Doe, 259 F.3d at 990. It

further held that the law, in particular its onerous regis-

tration requirements, was retributive. Jd. at 990. The

22

State and its amici do not seriously contest that the

statute has a deterrent effect, pointing out instead that

measures frequently “‘serve civil as well as criminal

goals.” State’s Br. at 44 (quoting Hudson, 522 U.S. at

105); United States’ Br. at 35 (same). While this is true, see

infra at n.5, it does not change the fact that the factor

provides additional support for the conclusion that the

ASORA has a punitive effect.

4. The Law is Vastly Excessive in Rela-

tion to the State’s Interest in Public

Safety.

Fourth, the law is vastly excessive in relation to the

State’s asserted interest in public safety. See Doe, 259 F.3d

at 991-93. While the ASORA is excessive in numerous

respects, see supra at 4-5, two aspects of its excessiveness

merit particular discussion. Those are the statute’s subjec-

tion of all registrants to notification, regardless of their

risk of re-offense or danger to the community, and its

failure to limit notification in any way.

Again, the State does not seriously contend that the

ASORA is not excessive. Nor could it. It subjects to regis-

tration and notification not only those offenders who may

in fact pose a danger to public safety, but also those who

plainly do not. The excessiveness of the ASORA in this

regard is extraordinary; as the Court of Appeals recog-

nized, “[w]ith one exception, every sex offender registra-

tion and notification law that has been upheld has tailored

the provisions of the statute to the risk posed by the

offender.” 259 F.3d at 992. See also Community Notifica-

tion and Education at 5-6 (at least eighteen states use risk

assessment instruments or committees to assess an

offender’s level of notification, based upon the individual's

|

a

— ——_ ae

23

“similarities and differences from offenders known to have

- committed new sexual offenses”).

All persons who have been convicted of a sex offense

simply do not present the same risk of re-offense or pose

the same threat to public safety. For example, respondent

John Doe I, who had been adjudged by a court to have

been successfully rehabilitated and was awarded custody

of his minor daughter, plainly does not pose the same

threat as a repeat, violent offender who has not been

successfully rehabilitated. “Sex offenders are not a ho-

mogenous group; reoffense rates vary among different

types of sex offenders and are related to specific character-

istics of the offender and the offense.” Community Notifi-

cation and Education at 15. Thus, undifferentiated

notification does not promote public safety; in fact, it

undermines it because it distracts the public from concen-

trating on those offenders about whom they should be

most concerned.

Similarly, the disclosure of the information contained

in the State’s registry without limitation is plainly exces-

sive. Consistent with this common-sense proposition, until

recently, most states did not seek to disclose the contents

of their registries world-wide, as Alaska has elected from

the outset. See id. at 8. Rather, the states limited disclo-

sure to those in proximity to a particular offender or those

inquiring about a specific offender, a proxy for a need for

the information. See Doe, 259 F.3d at 993. Indeed, in

distinguishing the Alaska law from the Washington

registration and notification statute upheld in Russell v.

Gregoire, 124 F.3d 1079 (9th Cir. 1997), the court of ap-

peals found it significant that “the Washington statute

authorized dissemination of information about any par-

ticular sex offender only within a ‘narrow geographical

area.’” Doe, 259 F.3d at 992 (quoting Russell, 124 F.3d at

1082).

24 -

As the court of appeals observed, the punitive effect

caused by the ASORA’s excessiveness lies in its unneces-

sary subjection of persons who are not a danger to the

public to the statute’s onerous registration requirements,

and its unnecessary subjection of all registrants to “the

unremitting social obloquy and ostracism” that accompa-

nies “being publicly labeled a sex offender on Alaska’s

world-wide Internet website.” Doe, 259 F.3d at 993. Simi-

larly, in Kansas v. Myers, 923 P.2d at 1041, the Supreme

Court of Kansas found that the excessiveness of unlimited

public disclosure, even absent posting on the Internet, was

the “key factor” in determining that the Kansas notifica-

tion law was punitive. It explained:

[the law] places no restrictions on who is given

access to the registered offender information or

what that person does with the information. The

print or broadcast media could make it a practice

of publishing the list as often as they chose. Anyone

could distribute leaflets anywhere and anytime.

Id. Thus, the court concluded, even though the Kansas law

did not provide for any affirmative notification, it “leaves

open the probability that a registered sex offender could

suffer [considerable] stigma and ostracism.” Jd.

That is even more true in this case, where Alaska has

authorized disclosure of the information contained in its

registry “for any purpose, to any person.” Alaska Admin.

Code. tit. 13 § 09.050(a). The State’s failure to limit notifi-

cation to those with a need for the information based upon

public safety, or to limit the use of that information for

public safety purposes, renders the statute vastly exces-

sive. This excessiveness, in turn, strongly suggests that

the legislature’s motivation in enacting the ASORA was

not to promote public safety, but, instead, was to appease

an inflamed constituency that despised sex offenders, the

Owe eee

eer -

25

very situation against which the Ex Post Facto Clause

guards.

Even in Kansas v. Hendricks, in which the Court

upheld against a challenge under the Ex Post Facto

Clause Kansas’s civil confinement scheme for sex offend-

ers, the Court paid close attention to the tailoring of the

statute to its asserted remedial purposes. Critical to the

Court’s holding were the scheme’s limitation to “a small

segment of particularly dangerous offenders”; its “strict

procedural safeguards”; its segregation of civilly confined

offenders “from the general prison population”; its recom-

mendation of “treatment if such is possible”; and its

provision for the “immediate release” of an offender “upon

a showing that the individual is no longer dangerous or

mentally impaired.” Hendricks, 521 U.S. at 368-69. See

also Kansas v. Crane, 534 U.S. 407 (2002). No similar

tailoring is present in the Alaska statute.

For purposes of the Ex Post Facto Clause, the exces-

siveness of a measure beyond its remedial purpose is the

most significant Kennedy factor. A statute is more likely

“‘to reach the person, not the calling,” Fleming, 363 U.S.

at 616 (quoting Cummings, 4 Wall. at 320), when it im-

poses “excessive” disabilities that cannot be justified by

the law's ostensibly non-punitive aims. Indeed, the United

States agrees that the seventh Kennedy factor is deserving

of special emphasis when deciding whether a measure

violates the Ex Post Facto Clause. As the United States

acknowledges, by focusing on the fit between means and

ends, the seventh Kennedy factor plays a critical role in

exposing those measures that are “animated by ‘ambition,

or personal resentment, and vindictive malice’ that target

particular individuals for punishment.” Br. of the United

States at 20 (quoting Calder, 3 U.S. (3 Wall.) at 389).

Conversely, “where legislation broadly advances a legiti-

mate, identifiable regulatory purpose and its terms are

reasonably tailored to achieve that purpose, such legisla-

tive abuses are exceedingly unlikely.” Br. of the United

States at 21.

This Court has recognized as much. In its seminal Ex

Post Facto cases, the Court has based its decisions in

significant part on the fit between a measure that the

legislature had labeled as civil and its putative regulatory

aims. For example, in Fleming, the Court upheld a statute

terminating Social Security benefits to the vast majority of

deported aliens because it found the statute to be reasona-

bly tailored to the government’s interest in regulating the

Social Security program. Similarly, in De Veau v. Braisted,

363 U.S. 144 (1969), the Court found the disqualification

of feloms from working in the New York shipyards to be

* Recognizing the need for the Court to accord priority to certain of

the Kennedy factors, the State and its amici have urged the Court to

emphasize factors of their selection. Alaska and amici curiae the State

Attorneys General urge the Court to place emphasis solely on the sixth

factor, whether there is an alternative, non-punitive purpose to which

the measure may be rationally connected. State’s Br. at 33; State

Attorneys General’s Br. at 14. This is inappropriate for two reasons. To

begin, the first prong of the Ward “intents-effects” test already takes

into account the non-remedial purpose expressed by the legislature. See

Doe, 259 F.3d at 985 n.5 (although the second prong of the “intents-

effects” test includes an inquiry into the legislature's purpose, that

purpose is “necessarily considered in the examination conducted under

the first prong (the intent prong) of the test”). Thus, emphasizing the

sixth Kennedy factor alone would render the second prong of the Ward

test redundant and extraneous. Second, a measure will rarely be

enacted that cannot be connected to some non-punitive purpose. See

Hudson, 522 U.S. at 102 (sanctions frequently serve “civil as well as

criminal goals”); Ursery, 518 U.S. at 292 (same). Thus, emphasizing

only the sixth factor would render the Ex Post Facto Clause toothless,

affording protection against only the least wily of legislatures. To the

degree that the United States also places special emphasis on the sixth

factor, Br. of the United States at 21, its analysis is similarly flawed.

27

reasonably tailored to the state’s interest in promoting

safety in the shipyard industry. But in Cummings v.

Missouri, 4 Wall. 277, 319, the Court struck down a state

constitutional amendment conditioning the holding of any

state office or the practice of any profession on the swear-

ing of an oath of past loyalty of the United States, because

the Court found that the oath was excessive in relation to

any possible qualifications relating to the fitness or capac-

ity of persons for the offices or professions to which it

applied. For the same reasons, in Ex Parte Garland, 4

Wall. 333, 380 (1866), the Court struck down a federal law

requiring a similar oath of loyalty to the United States as

a condition of practicing law. Explaining its holdings in

these cases, the Court observed that it has rejected ex post

facto challenges when “the restriction of the individual

comes about as a relevant incident to a regulation of a

present situation, such as the proper qualifications for a

profession.” De Veau, 363 U.S. at 160. By contrast, it has

struck down as violating the Ex Post Facto Clause restric-

tions that were not reasonably related to the regulation of

any present activity. See Cummings, 4 Wall. at 320;

Garland, 4 Wall. at 382.

Thus, although no one Kennedy factor is dispositive,

see Hudson, 522 U.S. at 101, for purposes of the Ex Post

Facto Clause a determination that a measure is vastly

excessive in relation to its non-punitive goals should be

sufficient when combined with other factors to require the

conclusion that the measure has a punitive effect. See

Hudson, 522 U.S. at 111 (Stevens, J., concurring) (exces-

siveness “should be capable of tipping the balance in

28

extreme cases”). As the court of appeals held, those are

precisely the circumstances presented here.

B. The Remaining Factors Do Not Outweigh

the Four Factors Supporting a Punitive

Intent or Effect.

The Ninth Circuit found that the three remaining

Kennedy factors do not support the conclusion that the

Alaska law is punitive. These are that the ASORA does not

impose sanctions that have historically been considered

punishment; is not imposed solely upon a finding of

scienter; and can rationally be viewed as advancing a non-

punitive purpose. See Doe, 259 F.3d at 994.

The Ninth Circuit correctly held that these factors

should not be afforded controlling weight. See Kansas uv.

Myers, 923 P.2d at 1040-43 (skipping these factors as

“add[ing] little, if anything, to the [Ex Post Facto] analy-

sis”). First, whether the ASORA imposes sanctions histori-

cally regarded as punishment is far from clear: although

* Of course, different factors may be more significant in contexts

involving the Fifth, Sixth, and Eighth Amendments. It is not necessar-

ily the case that a measure that is punitive for purposes of the Ex Post

Facto Clause is also punitive for purposes of all other relevant constitu-

tional provisions. See Hendricks, 521 U.S. at 394-95 (Breyer, J.,

dissenting) (Court still has not devised “a single formula” for identifying

those measures that must be “constitutional[ly) characterizied) as

punishment”) (internal quotation marks and citations omitted). See also

Carol S. Steiker, Punishment and Procedure: Punishment Theory and

the Criminal-Civil Procedural Divide, 85 Geo. L. J. 775, 798 (1997) (“In

a growing number of cases ... the Supreme Court has concluded that

some state actions may be ‘punitive’ only for the purpose of invoking

one or another procedural protection.”). Since the only provision at

issue is the Ex Post Facto Clause, the Court need not here decide how

the analysis would be different, if at all, for purposes of other provisions

of the Constitution.

29

there is admittedly no precise historical equivalent to the

ASORA, its notification provisions at least approach the

historical punishments of shaming and branding. See E.B.,

119 F.3d at 1115-19 (Becker, J., concurring in part and

dissenting in part).

Second, whether the measure applies solely upon a

finding of scienter is not particularly probative. As the

court of appeals observed, the great majority of crimes

that subject a person to the Alaska law require scienter.

The only exceptions are a few “strict liability” offenses

such as statutory rape, deemed to be so harmful that the

law effectively assumes scienter. See Doe, 259 F.3d at 989.

Thus, although the ASORA does not apply only upon a

finding of scienter, it overwhelmingly applies where

scienter has been found — a fact which undermines the

weight that should be afforded this factor as well. Cf.

Hendricks, 521 U.S. at 352, 382 (in addition to those

convicted of an offense requiring scienter, civil commitment

scheme applied to persons charged with a sexually violent

offense but found incompetent to stand trial, and those found

“not guilty” because of a mental disease or defect).

Third and finally, whether the measure can be ration-

ally connected to a remedial purpose should not be af-

forded significant weight. As noted supra at n.5, the

legislature’s characterization of a measure as civil is

already afforded significant deference under the first

prong of the Hudson-Ward analysis. In addition, there will

nearly always be a non-punitive purpose that can be

- advanced in support of a measure. Thus, the State’s ability

to articulate a non-punitive purpose served by the ASORA

is far less revealing than, for example, whether the state’s

chosen means are, as here, vastly excessive in relation to

whatever non-punitive purpose is asserted.

30

In sum, four of the seven Kennedy factors support the

conclusion that the ASORA is punitive. Taken together,

these factors unmistakably provide the “clearest proof”

necessary to require a determination that the law is

punitive. And the remaining Kennedy factors, even assum-

ing they fall in favor of the State, are plainly insufficient

to alter that conclusion.

¢

CONCLUSION

Yor the reasons stated above, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

STEVEN R. SHAPIRO LAWRENCE S. LUSTBERG

AMERICAN" CIVIL LIBERTIES Counsel of Record

UNION FOUNDATION JESSICA A. ROTH

125 Broad Street GIBBONS, DEL DEO, DOLAN,

New York, New York 10094 GRIFFINGER &

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NATIONAL ASSOCIATION

Newark, New Jersey 07102

OF CRIMINAL DEFENSE (973) 596-4500

ATTORNEYS

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New York, New York 10005

August 5, 2002