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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doe v. State (07/25/2008) sp-6290
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JOHN DOE, a pseudonym, | ) |
| ) Supreme Court No. S- 12150 | |
| Appellant, | ) |
| ) Superior Court Nos. 3AN-05-04434 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) No. 6290 July 25, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Darryl L. Thompson, Darryl L.
Thompson, P.C., Anchorage, for Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews, and
Eastaugh, Justices. [Bryner and Carpeneti,
Justices, not participating.]
EASTAUGH, Justice.
FABE, Chief Justice, dissenting.
I. INTRODUCTION
The Alaska statute known as the Alaska Sex Offender
Registration Act (ASORA) requires persons convicted of sex
offenses to register and periodically re-register with the Alaska
Department of Corrections, the Alaska State Troopers, or local
police, and disclose detailed personal information, some of which
is not otherwise public. Most of the disclosed information is
publicly disseminated and is published by the state on the
internet.1 Does applying ASORA to John Doe, who committed his
crime and was convicted and sentenced before ASORA was enacted,
violate the ex post facto clause of the Alaska Constitution? We
conclude that it does because ASORA imposes burdens that have the
effect of adding punishment beyond what could be imposed when the
crime was committed. We therefore hold that ASORAs registration
requirement does not apply to persons who committed their crimes
before ASORA became effective, and reverse the superior court
order granting final judgment in favor of the state and against
Doe.
II. FACTS AND PROCEEDINGS
John Doe was charged in 1985 with three counts of first-
degree sexual abuse of a minor for molesting one of his
daughters.2 Doe pleaded no contest to one count of first-degree
sexual abuse of a minor, an unclassified felony, and to one count
of second-degree sexual abuse of a minor, a class B felony. The
superior court accepted his plea and sentenced him to twelve
years of imprisonment with four suspended. Doe began serving his
sentence in August 1985.
In December 1990 Doe completed serving the unsuspended
portion of his sentence less a good-time reduction required by AS
33.20.010(a) and was released to mandatory parole and supervised
probation. In September 1991 the Parole Board released Doe from
mandatory parole nearly two years early, based on its
determination that Doe had participated in rehabilitative
counseling and posed little or no threat to the public. In 1995
Doe completed his period of probation.
In May 1994 the Alaska Legislature enacted the statute
known as the Alaska Sex Offender Registration Act (ASORA).3 It
became effective August 10, 1994,4 after Doe was convicted,
sentenced, and released from prison, but before he completed his
probation. ASORA requires sex offenders to register with the
Alaska Department of Corrections, the Alaska State Troopers, or
local police.5 It requires registrants to disclose their names,
addresses, places of employment, date of birth, information about
their conviction, all aliases used, drivers license numbers,
information about the vehicles they have access to, any
identifying physical features, anticipated address changes, and
information about any psychological treatment received.6 It
authorizes registrants to be photographed and fingerprinted.7
Registrants must periodically re-register and update their
disclosures: those convicted of aggravated crimes must re-
register quarterly; those not convicted of aggravated crimes must
re-register annually.8 A sex offender who changes residences
must give notice to the state trooper office or municipal police
department closest to his new residence within one working day.9
ASORA requires the Alaska Department of Public Safety
to maintain a central registry of sex offenders that contains the
information obtained under ASORA.10 ASORA authorizes public
access to offenders names, aliases, dates of birth, addresses,
photographs, physical descriptions, motor vehicle information,
places of employment, and public information about their
convictions and sentences.11 Public access to the information
includes a statement as to whether the offender is in compliance
with AS 12.63 or cannot be located.12 The Department of Public
Safety provides public access to the information by posting it on
the internet.13 A photograph of each registrant appears on a
webpage under the caption Registered Sex Offender/Child
Kidnapper.14 Each registrants page also displays the registrants
physical description, home address, employer, work address, and
conviction information.15
ASORAs provisions require Doe to register and re-
register every three months for the rest of his life.16 But his
information has never been publicly released on the states
website. In 1994 Doe (using the pseudonym Rowe) sued state
officials in the United States District Court for the District of
Alaska challenging ASORA on the grounds it violates the federal
prohibition against ex post facto laws, the Fourth Amendment
prohibition against unreasonable searches and seizures, his plea
bargain contract, and his right to privacy.17 The federal court
concluded that Doe established a likelihood of success on his ex
post facto and plea agreement violation claims, and found that
the balance of hardships tipped in favor of Doe to the extent his
registration information would be publicly disseminated.18 It
therefore granted a preliminary injunction requiring Doe to
register under the act, but prohibiting the state from publicly
disclosing the registration information.19 In 1998 the parties
filed cross-motions for summary judgment and the district court
granted the states motion.20
On appeal, the United States Court of Appeals for the
Ninth Circuit reversed the states summary judgment and held that
ASORA is an ex post facto law as applied to Doe.21 The Alaska
Public Safety Commissioner petitioned for certiorari and the
United States Supreme Court reversed the Ninth Circuits decision
after concluding that the statute did not violate the federal ex
post facto clause.22 The Court remanded the case to the Ninth
Circuit.23 On remand, the Ninth Circuit rejected Does other
federal substantive and procedural due process claims.24 The
federal courts did not rule on Does state law claims.
In January 2005 Doe sued the state in the superior
court, seeking a judgment declaring that ASORA denies him due
process in violation of the Alaska Constitution. Doe also
requested a temporary restraining order and preliminary and
permanent injunctions to prevent the state from requiring him to
publicly register. The state opposed Does motion for injunctive
relief. In August 2005 the superior court denied Does motion.
It determined that Doe had established the potential for
irreparable harm, but had not established a likelihood of success
on the merits. It concluded that Doe had not shown that ASORAs
registration requirement violated any fundamental right or
liberty interest and that requiring Doe to publicly register
therefore would not violate his substantive or procedural due
process rights.
Anticipating an appeal to this court, the superior
court entered a temporary stay under Alaska Civil Rule 62
prohibiting the state from publishing or disseminating Does
information. The parties agreed no further superior court
proceedings were necessary to resolve Does claims and stipulated
to entry of final judgment. In November 2005 the superior court
entered final judgment for the state and against Doe.
Doe appeals.
III. DISCUSSION
A. Standard of Review
We give de novo review to questions of law, including
issues of statutory interpretation.25 In ruling on questions of
law, we adopt the rule which is most persuasive in light of
precedent, reason, and policy.26 We apply our independent
judgment in determining whether a statute violates the Alaska
Constitution.27
B. The Ex Post Facto Clause
1. The parties contentions
Does opening brief argues that compliance with ASORA
would impose harmful and onerous new consequences, violating his
right to due process. Because we determined that the essence of
his argument is an ex post facto claim, we asked the parties to
submit supplemental briefs addressing whether as applied to Doe
ASORA violates Alaskas prohibition against ex post facto laws.
Article I, section 15 of the Alaska Constitution, like
article I, section 9 of the United States Constitution, provides
that [n]o . . . ex post facto law shall be passed. An ex post
facto law is a law passed after the occurrence of a fact or
commission of an act, which retrospectively changes the legal
consequences or relations of such fact or deed.28 These
constitutional prohibitions bar the legislature from enacting any
law that punishes as a crime an act previously committed, which
was innocent when done; which makes more burdensome the
punishment for a crime, after its commission; or which deprives
one charged with a crime of any defense available according to
law at the time when the act was committed.29 But [t]he mere fact
that [a statute] alters a convicted felons circumstances to his
or her disadvantage does not in itself invalidate the statute as
ex post facto.30 In short, the prohibition applies only to penal
statutes; the critical question is therefore whether ASORA
imposes additional punishment on individuals, like Doe, who
committed their crimes before ASORA became effective. Federal
courts use a two-part test to determine whether a statute imposes
punishment.31 This is the test we will describe in Part III.B.3
and apply in Part III.C. We will refer to this test as the
intent-effects test or the multifactor effects test.
Doe argues that because it substantially alters the
consequences attached to the completed crime, ASORA satisfies
Alaskas ex post facto clause only if ASORA is applied
prospectively, to persons who committed their crimes after August
10, 1994, when ASORA took effect.32
Doe advances two main arguments in support. First,
recognizing that the United States Supreme Court held in Smith v.
Doe that ASORA does not violate the federal ex post facto clause,33
Doe argues that the Alaska Constitution provides more protection
than the Federal Constitution. Doe urges us to read the Alaska
ex post facto clause in conjunction with the due process clause34
and article I, section 135 of the Alaska Constitution. He argues
that Alaskas due process and ex post facto clauses, unlike the
corresponding federal clauses, are aimed at the legislature and
that both clauses are intended to protect individual liberties
from retroactive infringement. Doe therefore reasons that we
should interpret Alaskas ex post facto clause more broadly than
the corresponding federal clause. He alternatively argues that
ASORA is an invalid ex post facto law even if Alaskas ex post
facto clause is coextensive with its federal counterpart because
ASORA is punitive under the federal standard.
The state responds that ASORA is a regulatory law
intended to help protect the public by collecting information and
making it publicly accessible. It argues that ASORA is not a
penal law, and that it was not intended to punish convicted
individuals for past acts. The state also contends that because
our past decisions discussing the ex post facto clause have
interpreted the Alaska prohibition to be the same as the federal
prohibition,36 the doctrine of stare decisis obliges us to hold
that the Alaska provision is coextensive with the federal
provision. The state consequently concludes that because ASORA
satisfies the federal ex post facto clause, ASORA also satisfies
Alaskas ex post facto clause.37
2. Stare decisis
The state correctly notes that we have relied on
federal precedent and analysis in addressing state ex post facto
claims in the past.
We concluded in one case that a decision of the Supreme
Court addressing an ex post facto challenge to a statute
equivalent to the statute then before us is dispositive of any
claim based on the federal constitution, and we see no reason for
us to interpret Alaskas constitutional provision differently.38
In another case, we saw no reason to construe our parallel ex
post facto prohibition article I, section 15 differently from
the federal provision.39 In another, we relied on a Supreme Court
opinion in concluding that the challenged statute was
compensatory rather than punitive and that it therefore did not
violate either the federal or state ex post facto clause.40 And
in another case, we stated that [w]e construe our state [ex post
facto] prohibition no differently than the federal prohibition.41
In short, having seen no reason to do otherwise,42 we
construed Alaskas ex post facto prohibition in those cases to be
coextensive with the corresponding federal prohibition. We
therefore accepted the federal analyses and results. We did so
notwithstanding our contemporaneous and repeated recognition that
we have the authority and, when necessary, duty to construe the
provisions of the Alaska Constitution to provide greater
protections than those arising out of the identical federal
clauses.43 In following federal authority, our ex post
facto cases have implicitly reasoned that it was unnecessary in
those cases either to deviate from the federal analytical
approach or to construe our constitution more protectively.44 We
implicitly so reasoned because the federal decisions reached an
outcome not inconsistent with the Alaska Constitution.
Nonetheless, we have never endorsed federal ex post facto
analysis as superseding or limiting our independent consideration
of Alaskas ex post facto prohibition.45 Nor have we indicated
that federal interpretation of the federal ex post facto
prohibition prevents us from reaching a different, and more
protective, result under the Alaska Constitution.
Stare decisis therefore has no application here.
Todays decision does not overrule or depend on overruling any
prior decision of this court, nor does it depart from any past
holding of this court. We have never adopted a reading of
Alaskas ex post facto prohibition that would, unless overruled,
foreclose todays result.46
Nor is todays decision, or the analysis we apply here,
inconsistent with the analytical approach we have approved for
deciding ex post facto claims under the Alaska Constitution. Our
reliance on the multifactor effects test is consistent with our
past use of federal law in resolving state ex post facto claims.47
And in applying that test here we also reach a result consistent
with what the federal standards appear to have been before 2003,
when the Supreme Court decided Smith.48
That the Supreme Court, after considering the same
factors and same statute that we consider today, held in Smith v.
Doe that there was no ex post facto violation may seem to raise
several questions. First, why doesnt Smiths holding control this
case as a matter of stare decisis? Second, why doesnt Smiths
discussion of the multifactor effects test control our analysis
in applying the same factors? Third, even if Smiths discussion
of those factors is not directly controlling, how can we
rationally disagree with it?
As to the first question, Smiths holding is not stare
decisis here because Does claims are based on the Alaska
Constitution, whereas Smith was based exclusively on the Federal
Constitution.49 Smith did not apply state law or decide state law
issues.
As to the second question, how we apply the multifactor
effects test in deciding an ex post facto claim under the Alaska
Constitution is not governed by how the federal courts
independently apply the same test under the Federal Constitution,
as long as our interpretation is at least as protective as the
federal interpretation.50 What we have said in our ex post facto
cases cannot be read as prospectively limiting the protections of
the Alaska Constitution to what federal courts might later say
the corresponding federal clauses provide. Nor could we have
done so.51
Finally, the Supreme Courts discussion in Smith
certainly informs our analysis here. But it does not and cannot
preempt our independent analysis or dictate the result we reach.
Our interpretation of a clause in the Alaska Constitution is not
limited by the Supreme Courts interpretation of the corresponding
federal clause.52 As the Supreme Court has recognized,
[i]f a state court chooses merely to rely on
federal precedents as it would on the
precedents of all other jurisdictions, then
it need only make clear by a plain statement
in its judgment or opinion that the federal
cases are being used only for the purpose of
guidance, and do not themselves compel the
result that the court has reached.[53]
Consequently, the results of the federal opinions do
not control our independent analysis when, in interpreting the
Alaska Constitution, we look for guidance to either federal
precedent or the analytical framework applied by federal courts.
Our adoption of the analytical approach approved by the federal
courts likewise does not mean that we are bound by how the
Supreme Court applied that approach in Smith. The question
before us is whether applying ASORA to Doe violates Alaskas ex
post facto provision. As to that question, Alaska retains its
sovereign authority.
3. Our choice of analytical approach
We begin our analysis by identifying the appropriate
analytical framework. In Smith v. Doe, the Supreme Court
considered the identical issue under the Federal Constitution and
applied the multifactor intent-effects test derived from the
Courts prior decisions.54 Under this test, a court first
determines whether the legislature intended to impose punishment;
if punishment was the intent, the courts inquiry ends.55 But if
the court concludes that the legislature intended a non-punitive
regulatory scheme, the court next analyzes the effects of the
statute under a number of factors to determine whether the
statute is nonetheless punitive in effect.56 Our court has never
adopted this test, but the Alaska Court of Appeals applied it in
considering and rejecting an ex post facto challenge to ASORA in
Patterson v. State.57
The intent-effects test provides an appropriate
analytical framework here. Although a multifactor test is
potentially susceptible to different conclusions, the
availability of reported decisions applying that test helps
inform its application in new cases.
Our conclusion that it is appropriate to apply the
federal test to our state law inquiry in this case is consistent
with our independent consideration of each of the tests seven
factors, because we are here both construing the protections of
our constitution and reviewing an enactment of our legislature.
Therefore, even though we choose to consider the same factors the
federal courts use to distinguish between civil remedies and
criminal penalties,58 we give independent consideration to these
factors in applying the Alaska Constitution.
C. ASORA Is Punitive for Purposes of the Alaska Ex Post
Facto Clause.
The intent-effects test would usually first require us
to consider whether the Alaska Legislature, when it enacted
ASORA, intended to enact a regulatory scheme that is civil and
non-punitive.59 If the purpose was not punishment but regulation,
the test would next require us to determine whether the effects
of regulation are so punitive that we must nonetheless conclude
that ASORA imposes punishment.60
It is not necessary to address the first step of the
test whether the legislature intended ASORA to punish convicted
sex offenders because the second part of the test whether
ASORAs effects are punitive resolves the dispute before us.
Assuming without deciding that the legislature intended ASORA to
be non-punitive,61 we therefore focus on the statutes effects to
determine whether they are punitive.62
In assessing a statutes effects, the Supreme Court
indicated in Ward the seven factors it listed in 1963 in Kennedy
v. Mendoza-Martinez provide some guidance:63
(1) [w]hether the sanction involves an
affirmative disability or restraint;
(2) whether it has historically been
regarded as a punishment;
(3) whether it comes into play only on a
finding of scienter;
(4) whether its operation will promote the
traditional aims of punishment retribution
and deterrence;
(5) whether the behavior to which it applies
is already a crime;
(6) whether an alternative purpose to which
it may rationally be connected is assignable
for it; and
(7) whether it appears excessive in relation
to the alternative purpose assigned.[64]
The Supreme Court has not explained the relative weight
to be afforded each factor. But the Court has recognized that
the factors often point in differing directions and that no one
factor is determinative.65 Determining whether a statute is
punitive necessarily involves the weighing of relatively
subjective factors.
We address each of the factors in turn.
1. Affirmative disability or restraint
We first ask [w]hether the sanction involves an
affirmative disability or restraint.66 The state argues that
ASORA involves neither because it imposes no physical restraint,
has obligations less harsh than occupational debarment which the
Supreme Court has held to be non-punitive67 and, in the Supreme
Courts words, restrains [no] activities sex offenders may pursue
but leaves them free to change jobs or residences.68
But even though the statute imposes no physical
restraints, we agree with Justice Stevenss dissenting comments in
Smith that ASORA impose[s] significant affirmative obligations
and a severe stigma on every person to whom [it] appl[ies].69
First, ASORA compels affirmative post-discharge conduct
(mandating registration, re-registration, disclosure of public
and private information, and updating of that information) under
threat of prosecution.70 The duties are significant and
intrusive, because they compel offenders to contact law
enforcement agencies and disclose information, some of which is
otherwise private, most of it for public dissemination.71
Furthermore, the time periods associated with ASORA are
intrusive.72 Sex offenders convicted of an aggravated sex offense73
or two or more sex offenses must re-register quarterly for the
rest of their lives; all other offenders must re-register
annually for fifteen years.74 All sex offenders who change
residences must notify the state trooper office or municipal
police department closest to their new residences within one
working day.75 As we stated in Doe v. State, Department of Public
Safety (Doe A), ASORA thus treats offenders not much differently
than the state treats probationers and parolees subject to
continued state supervision.76
Second, we agree with the conclusion of Justice
Ginsburg, also dissenting in Smith, that ASORA exposes
registrants, through aggressive public notification of their
crimes, to profound humiliation and community-wide ostracism.77
In the decision reversed in Smith, the Ninth Circuit observed
that [b]y posting [registrants] names, addresses, and employer
addresses on the internet, the Act subjects [registrants] to
community obloquy and scorn that damage them personally and
professionally.78 The Ninth Circuit observed that the practical
effect of this dissemination is that it leaves open the
possibility that the registrant will be denied employment and
housing opportunities as a result of community hostility.79 As
Justice Souter noted in concurring in Smith, there is significant
evidence of onerous practical effects of being listed on a sex
offender registry.80 Outside Alaska, there have been reports of
incidents of suicide by and vigilantism against offenders on
state registries.81
We also disagree with the Supreme Courts conclusion in
Smith that the obligations ASORA imposes are less harsh than the
occupational debarment which the Court has held to be non-
punitive.82 The Supreme Court has upheld the constitutionality of
post-conduct professional sanctions that included the prohibition
of further participation in the banking industry83 and revocation
of medical licenses.84 A comparable bar for sex offenders who
pose a risk to children might be employment in places frequented
by children. But the practical effects here can predictably
extend to all employment opportunities as well as to all other
non-employment aspects of life, including housing opportunities.
There are published reports that offenders are sometimes
subjected to protests and group actions designed to force them
out of their jobs and homes.85 We agree that [t]he practical
effect of such unrestricted dissemination could make it
impossible for the offender to find housing or employment.86
The state argues, however, that the negative effects
that Doe emphasizes (negative impacts on employment and housing
opportunities) will exist even if Doe is not subject to ASORA
because those consequences result not from registration and
dissemination of information, but from the conviction itself.
Moreover, the state asserts that there is no evidence that
Alaskans have directed any wrath at convicted sex offenders and
notes that the sex offender registry website warns viewers about
using registry information to commit a criminal act.87
Neither of these arguments is persuasive. ASORA
requires release of information that is in part not otherwise
public or readily available. Moreover, the regulations authorize
dissemination of most ASORA registration information for any
purpose, to any person.88 Taken in conjunction with the Alaska
Public Records Act,89 ASORAs treatment of this information,
confirmed by the regulations, seems to require that the
information be publicly available. By federal law, it is
disseminated statewide, indeed worldwide, on the states website.90
There is a significant distinction between retaining public paper
records of a conviction in state file drawers and posting the
same information on a state-sponsored website; this posting has
not merely improved public access but has broadly disseminated
the registrants information, some of which is not in the written
public record of the conviction. As the Alaska Court of Appeals
noted, ASORA does provide for dissemination of substantial
personal and biographical information about a sex offender that
is not otherwise readily available from a single governmental
source.91 We also recognized in Doe A that several sex offenders
had stated that they had lost their jobs, been forced to move
from their residences, and received threats of violence following
establishment of the registry, even though the facts of their
convictions had always been a matter of public record.92 We
therefore conclude that the harmful effects of ASORA stem not
just from the conviction but from the registration, disclosure,
and dissemination provisions.
We are also unpersuaded by the states assertion that
there is insufficient evidence to establish that harmful effects
have actually occurred in Alaska. Does affidavit contains
excerpts from affidavits submitted in the federal court. The
excerpts recite instances of registrants losing employment,
having difficulty finding housing and employment, and moving out
of the marital home due to fear of the effects public
dissemination would have on their families. Similarly, the Ninth
Circuit, when addressing Does earlier ex post facto challenge to
ASORA, noted that the record before that court contained evidence
that a sex offender suffered community hostility and damage to
his business after printouts of the Alaska sex offender
registration website were publicly distributed and posted on
bulletin boards.93
2. Sanctions that have historically been considered
punishment
We next determine whether [the statutes effects have]
historically been regarded as a punishment.94 ASORA does not
expressly impose sanctions that have been historically considered
punishment.95 Because registration acts such as ASORA are of
fairly recent origin, courts addressing this issue have
determined that there is no historical equivalent to these
registration acts.96 Some courts have instead considered whether
the acts are analogous to the historical punishment of shaming;
these courts have concluded that they are not.97 But the
dissemination provision at least resembles the punishment of
shaming98 and the registration and disclosure provisions are
comparable to conditions of supervised release or parole.99 And
these provisions have effects like those resulting from
punishment. The fact that ASORAs registration reporting
provisions are comparable to supervised release or parole
supports a conclusion that ASORA is punitive.
3. Finding of scienter
Third, we consider whether [the statute] comes into
play only on a finding of scienter.100 The obligations of ASORA
are not imposed solely upon the finding of scienter.101 ASORA also
applies to strict liability offenses, such as statutory rape,
that the law deems sufficiently harmful to effectively assume
scienter.102 But even though ASORA applies to a few strict
liability offenses, it overwhelmingly applies to offenses that
require a finding of scienter for conviction.103 The few
exceptions do not imply a non-punitive effect, given the
assumption of scienter for those exceptions and the fact that a
reasonable-mistake-of-age defense is allowed in a charge of
statutory rape.104 This factor therefore receives little weight in
our analysis; it weakly implies a punitive effect.
4. The traditional aims of punishment
We next ask whether [the statutes] operation will
promote the traditional aims of punishment retribution and
deterrence.105 Although in State v. Chaney we identified four
objectives of criminal sentencing rehabilitation, isolation,
deterrence of defendant and others, and reinforcement of societal
norms106 the Mendoza-Martinez test focuses on retribution and
deterrence.107 The state argues that the registration and
dissemination provisions are not retributive and that any
deterrent effects of registration and dissemination are only
incidental to the provisions regulatory function.
But ASORAs application to a broad spectrum of crimes
regardless of their inherent or comparative seriousness108 refutes
the states argument and suggests that such retributive and
deterrent effects are not merely incidental to the statutes
regulatory purpose. Every person convicted of a sex offense must
provide the same information, and the state publishes that
information in the same manner, whether the person was convicted
of a class A misdemeanor or an unclassified felony. ASORAs only
differentiation is in the frequency and duration of a persons
duty to register and disclose.109 But at any given moment the
registration list does not distinguish those individuals the
state considers to pose a high risk to society from those it
views as posing a low risk. ASORA determines who must register
based not on a particularized determination of the risk the
person poses to society but rather on the criminal statute the
person was convicted of violating.
In Kansas v. Hendricks the Supreme Court determined
that the Kansas Sexually Violent Predator Act is not retributive
because it does not affix culpability for prior criminal conduct.110
That act is not triggered by a criminal conviction, but rather by
criminal conduct; it applies to individuals charged with sexually
violent offenses but who may be absolved of criminal
responsibility.111 The Supreme Court there stated that [a]n
absence of the necessary criminal responsibility suggests that
the State is not seeking retribution for a past misdeed.112 But as
we discuss in Part III.C.5, ASORA applies only to those convicted
of specified offenses.113
Moreover, in Doe v. Smith the Supreme Court noted that
the state had conceded that ASORA might deter future crimes,114 an
effect that would be punitive. Although the state has made no
similar concession in this appeal, it is significant that the
state there admitted that the same statute on the same facts
currently before us could have deterrent effects. The state
argues here that, in the Supreme Courts words, it would severely
undermine the Governments ability to engage in effective
regulation115 to determine that a law is punitive because it also
deters. We assume for sake of discussion that a statute limiting
registration requirements and public dissemination to the extent
necessary to protect the public could have a deterrent effect
that would be merely incidental to its non-punitive purpose. But
ASORAs registration and unlimited public dissemination
requirements provide a deterrent and retributive effect that goes
beyond any non-punitive purpose and that essentially serves the
traditional goals of punishment.
5. Application only to criminal behavior
Under the fifth factor we consider whether the behavior
to which [the statute] applies is already a crime.116 The fact
that a statute applies only to behavior that is already, and
exclusively, criminal supports a conclusion that its effects are
punitive.117 When analyzing ASORA the Supreme Court asserted in
Smith that this factor was of little weight in this case.118 The
Court there stated that conviction is a necessary beginning
point, for recidivism is the statutory concern.119 But if
recidivism, i.e., new sexual misconduct, were the only concern,
the statute would apply not just to convicted sex offenders but
to other individuals who may pose a threat to society even if
they were not convicted. See, for example, the Washington
registration act, upheld by the Ninth Circuit; it includes sex
offenders not found guilty including those incompetent to stand
trial, those found not guilty by reason of insanity, and those
committed as sexual psychopaths or sexually violent predators as
well as those who are convicted.120 The Utah registration act,
also constitutionally upheld, includes those found not guilty on
the ground of mental incapacity.121
As the state concedes, ASORA applies only to those
convicted of specified offenses.122 Defendants charged with sex
offenses but who plead out to non-sex offenses such as coercion
or simple assault do not have to register even though they may
have engaged in the same conduct as individuals who do have to
register.123 Likewise, even convicted defendants whose convictions
are overturned for reasons other than insufficiency of evidence
of guilt do not have to register despite having engaged in the
same conduct.124 An adult who commits sexual abuse of a minor in
the first degree by engaging in sexual penetration with a person
under thirteen years of age,125 but whose conviction is overturned
due to an illegal search, does not have to register. Finally,
ASORA does not require registration for those charged with sex
offenses but acquitted, even though they may have engaged in the
same conduct as convicted sex offenders and might even be found
civilly liable under a lesser standard of proof.
It is true that ASORA applies to individuals who either
enter a plea of or are found guilty but mentally ill.126 But we do
not read this inclusion to make the scope of ASORA the same as
that of the Washington and Utah registration acts previously
discussed. Because including this class of offenders again looks
to guilt, applying ASORA to those found guilty but mentally ill
does not demonstrate any non-punitive effect.
In other words, ASORA fundamentally and invariably
requires a judgment of guilt based on either a plea or proof
under the criminal standard. It is therefore the determination
of guilt of a sex offense beyond a reasonable doubt (or per a
knowing plea), not merely the fact of the conduct and potential
for recidivism, that triggers the registration requirement.
Because it is the criminal conviction, and only the criminal
conviction, that triggers obligations under ASORA, we conclude
that this factor supports the conclusion that ASORA is punitive
in effect.127
6. Advancing a non-punitive interest
We next ask whether, in the words of the Supreme Court,
an alternative purpose to which [the statute] may rationally be
connected is assignable for it.128 We translate this as an inquiry
whether ASORA advances a legitimate, regulatory purpose. ASORA
can rationally be viewed as advancing a non-punitive purpose.129
When it enacted ASORA the legislature found that:
(1) sex
offen
ders
pose
a
high
risk
of
reoff
endin
g
after
relea
se
from
custo
dy;
(2) protecting the public from sex offenders
is a primary governmental interest;
(3) the privacy interests of persons
convicted of sex offenses are less important
than the governments interest in public
safety; and
(4) the release of certain information about
sex offenders to public agencies and the
general public will assist in protecting the
public safety.[130]
The Ninth Circuit stated that the states non-punitive
interest in public safety unquestionably provides support,
indeed, the principal support, for the view that the statute is
not punitive for Ex Post Facto Clause purposes.131 The Supreme
Court also stated that ASORAs rational connection to a non-
punitive purpose was a [m]ost significant factor in its
determination that ASORA is non-punitive in effect.132 We likewise
conclude that ASORA advances a non-punitive interest.
7. Closeness of connection of means to the states
interest in public safety
Finally, we determine whether [ASORA] appears excessive
in relation to the alternative purpose assigned.133 In analyzing
this factor the Ninth Circuit addressed the scope of individuals
subject to ASORA and the breadth of its dissemination provision;
it determined that ASORA makes information as to all sex
offenders . . . available without any restriction and without any
regard to whether the individual poses any future risk.134 The
Ninth Circuit consequently concluded that ASORAs non-punitive
purpose, while of unquestioned importance, does not serve to
render a statute that is so broad and sweeping non-punitive.135
The Supreme Court also addressed the scope and
magnitude of ASORAs registration requirements and its
dissemination provision, but concluded that ASORA is not
excessive in relation to the states interest in public safety.136
In so deciding it determined 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,137 and that the duration of ASORAs
reporting requirements and what the Court called ASORAs passive
notification system are not so excessive as to be effectively
penal.138
The Court stated that the excessiveness inquiry is not
an exercise in determining whether the legislature has made the
best choice possible to address the problem it seeks to remedy.
The question is whether the regulatory means chosen are
reasonable in light of the nonpunitive objective.139
As the legislature found when enacting ASORA,
protecting the public from sex offenders is a primary
governmental interest.140 The state certainly has a valid interest
in addressing not just the egregious and highly publicized crimes
that gave rise to the Megans Law movement,141 but also other crimes
of which the risk of repetition and grave harm is sufficiently
predictable to justify the protections afforded by ASORA. But in
the context of our ex post facto inquiry, we have an obligation
to determine whether the means chosen to carry out legitimate
purposes are excessive, i.e., not close enough to be classified
as non-penal.
We use means here to include the scope of the statute
and the obligations it imposes on those subject to it and what
the state can or must do in enforcing it.
It is significant that ASORAs scope is broad; it
encompasses a wide array of crimes that vary greatly in severity.142
Moreover, ASORA provides no mechanism by which a registered sex
offender can petition the state or a court for relief from the
obligations of continued registration and disclosure.143 Offenders
cannot shorten their registration or notification period, even on
the clearest determination of rehabilitation or conclusive proof
of physical incapacitation.144 Doe successfully completed a
treatment program and was granted early release from mandatory
parole. A superior court granted him legal custody of his minor
daughter based on its determination that he was successfully
rehabilitated and posed a very low risk of re-offending.145
Despite this evidence of rehabilitation, ASORA requires Doe to
register quarterly and requires the state to publicly disseminate
his personal information for the rest of his life.146
Under ex post facto analysis we further conclude that
the statutes chosen means are excessive in relation to the
statutes purpose because the statute is also underinclusive. As
we discussed in Part III.C.5, ASORA only applies to those
convicted of specified offenses.147 It therefore excludes from its
requirements individuals who may have committed the same acts and
may pose threats to the public but who avoided conviction by
pleading to a lesser charge or whose convictions were overturned.
We do not mean to suggest that making the statute more inclusive
would necessarily resolve ex post facto issues or that such
changes would otherwise be constitutionally unobjectionable, but
we point to this feature to illustrate that ASORA has a punitive
effect.
ASORA also imposes obligations that, for ex post facto
purposes, are excessive in relation to the states legitimate
public safety interest. It is significant that the registration
and re-registration requirements are demanding and intrusive148 and
are of long duration.149
Finally, the provisions authorizing or requiring the
state to disseminate the information are sweeping. ASORA is much
broader than the Connecticut statute that authorizes courts to
order the state to restrict dissemination if the court finds that
dissemination is not required for public safety and that
publication of the information would likely reveal the identity
of the victim.150 ASORA is much closer to the Kansas statute
struck down on ex post facto grounds by the Kansas Supreme Court
because of its unrestricted public access . . . [that] goes
beyond that necessary to promote public safety.151
We are not balancing the rights of sex offenders
against the rights of their victims.152 Rather, we are determining
for ex post facto purposes whether the means chosen to protect
the public have consequences to sex offenders that significantly
go beyond the states valid interest in public safety, and exclude
individuals who may pose equivalent threats to public safety.
Some sex offender registration statutes employ means that have
been held to relate rationally and closely enough to the states
interest in public safety. For example, the Second Circuit
concluded that the notification policy adopted by the Connecticut
Office of Adult Probation was not excessive in relation to its
purpose of enhancing public awareness and helping to prevent the
recovering offender from harmful relapses.153 Connecticut allows
certain sex offenders convicted between October 1, 1988 and June
30, 1999 to petition the court to order the Department of Public
Safety to restrict the dissemination of the registration
information to law enforcement purposes only and to not make such
information available for public access.154 Connecticut also
provides certain sex offenders the possibility of avoiding
registration and dissemination upon a judicial determination that
registration or public dissemination is not required for public
safety.155
A statute is not deemed punitive simply because it
lacks a close or perfect fit with the nonpunitive aims it seeks
to advance.156 Although the non-punitive aims are undeniably
legitimate and important, ASORAs registration and dissemination
provisions have consequences to sex offenders that go beyond the
states interest in public safety; we must therefore conclude that
the Alaska statute is excessive in relation to the states
interest in public safety.
8. ASORAs effect
Summing up the effects under the seven factors, we
conclude that ASORAs effects are punitive, and convincingly
outweigh the statutes non-punitive purposes and effects. We
recognize that several of the factors seem closely related, and
that discussion of one may overlap discussion of another.
Nonetheless it is not the mere number of factors that leads us to
our conclusion, but our assessment of those factors and their
relative weight. Six of those factors lead us to disagree,
respectfully but firmly, with the Supreme Courts analysis and its
ultimate conclusion that ASORA is not penal.157 Our decision is
consistent with what we consider to be the compelling comments of
dissenting justices in Smith158 and with the majority of the Ninth
Circuit Court of Appeals panel that, before reversal, discerned
an ex post facto violation under federal law.159
Because ASORA compels (under threat of conviction)
intrusive affirmative conduct, because this conduct is equivalent
to that required by criminal judgments, because ASORA makes the
disclosed information public and requires its broad dissemination
without limitation, because ASORA applies only to those convicted
of crime, and because ASORA neither meaningfully distinguishes
between classes of sex offenses on the basis of risk nor gives
offenders any opportunity to demonstrate their lack of risk,
ASORAs effects are punitive. We therefore conclude that the
statute violates Alaskas ex post facto clause.160
IV. CONCLUSION
Because ASORAs registration, disclosure, and
dissemination provisions violate the protection against ex post
facto laws afforded by the Alaska Constitution as it applies to
defendants who committed their crimes before the legislature
enacted ASORA, we hold that AS 12.63.100(3) cannot be applied to
Doe. We consequently REVERSE the final judgment for the state,
and REMAND for entry of judgment for Doe.
FABE, Chief Justice, dissenting.
I disagree with the courts conclusion that ASORA
violates the ex post facto clause of the Alaska Constitution.
The court maintains that its reliance on the multifactor effects
test is consistent with our past use of federal law in resolving
state ex post facto claims. But our past decisions have firmly
established a practice of interpreting the Alaska ex post facto
clause no differently than its federal counterpart.1 The court
now purportedly applies that federal test to the facts of this
case: [t]he intent-effects test provides an appropriate
analytical framework here. But the courts decision directly
conflicts with the United States Supreme Courts application of
the same test to the same statute.2 As we have concluded in the
past, this case presents no reason for us to interpret Alaskas
constitutional provision differently.3
The court defends its expansion of Alaskas
constitutional protections against ex post facto litigation as
consistent with what the federal standards appear to have been
before 2003, when the Supreme Court decided Smith. But the Smith
Court announced no intention to depart from the standards that it
had previously created or to alter the Mendoza-Martinez
multifactor effects test. The Smith Court reasoned that its
examination of [ASORAs] effects leads to the determination that
[Doe] cannot show, much less by the clearest proof, that the
effects of the law negate Alaskas intention to establish a civil
regulatory scheme.4 Despite this courts implication that the
United States Supreme Court misapplied the Federal Ex Post Facto
Clause, todays decision actually broadens the protections of
Alaskas ex post facto clause beyond that of the Federal
Constitution. Thus, the court must justify its departure from
our established practice of interpreting the Alaska and federal
ex post facto clauses as coextensive. Todays decision, however,
fails to do so.
Of course, we have the authority and, when necessary,
duty to construe the provisions of the Alaska Constitution to
provide greater protections than those arising out of the
identical federal clauses. For example, we have devised our own
sliding-scale test to implement Alaskas more stringent equal
protection standard,5 which we have held protects Alaskans right
to non-discriminatory treatment more robustly than does the
federal equal protection clause.6 We have held that the state
constitution entitles Alaskans to a jury trial where the Federal
Constitution does not.7 And we have interpreted the Alaska
Constitutions mandate that [n]o person shall be put in jeopardy
twice for the same offense8 to extend beyond the Federal
Constitutions double jeopardy protections.9 But where we have
expanded Alaskans constitutional protections beyond federally
required minimums, we have recognized a duty to move forward in
those areas of constitutional progress which we view as necessary
to the development of a civilized way of life in Alaska.10
We have never recognized broader protections under the
Alaska Constitutions ex post facto clause as compared to the
Federal Constitutions.11 In Danks v. State, we examined an ex
post facto challenge to a habitual offender statute.12 As in
this case, the United States Supreme Court had rejected a
challenge to a similar statute under the federal clause.13
Accordingly, we held that the Supreme Court decision disposed of
Dankss federal claim, and we saw no reason for us to interpret
Alaskas constitutional provision differently.14 In State v.
Anthony, we rejected challenges under the state and federal ex
post facto clauses to a law that deprived certain felons of
receiving the annual permanent fund dividend.15 Our analysis did
not differentiate between the two clauses and noted the parties
agreement that the ex post facto prohibition of the Alaska
Constitution is the same as that of the United States
Constitution.16
As in this case, State v. Creekpaum17 involved a sex
offender. Creekpaum was charged with sexual assault over five
years after the alleged assault took place. At the time that
Creekpaum allegedly committed his offense, a five-year
limitations period applied. But the legislature subsequently
extended that period. In rejecting Creekpaums challenge to the
new limitations period under the state and federal ex post facto
clauses, we relied almost exclusively on United States Supreme
Court precedents in similar cases and once again declined to
construe our parallel ex post facto prohibition article I,
section 15 differently from the federal provision.18
Finally, in State v. Coon, we rejected a claim that our
adoption of new evidentiary rules for the admission of scientific
evidence violated federal and state constitutional prohibitions
on ex post facto legislation.19 Our decision in Coon followed
from an analysis of federal precedent and our explanation that
[w]e construe our state prohibition no differently than the
federal prohibition.20
These decisions leave no doubt that our practice of
treating the state and federal ex post facto clauses
coextensively is settled precedent. The courts decision today,
recognizing broader protections under the Alaska Constitution,
casts a pall of uncertainty upon our earlier decisions. The
court nevertheless declares that its decision does not overrule
or depend on overruling any prior decision of this court, nor
does it depart from any past holding of this court. This
assertion ignores the plain language of our previous holdings and
alters the doctrine of stare decisis beyond recognition.
We have explained that a prior decision may be
abandoned because of changed conditions if related principles of
law have so far developed as to have left the old rule no more
than a remnant of abandoned doctrine, [or] facts have so
changed[,] or come to be seen so differently, as to have robbed
the old rule of significant application.21 Perhaps one could
view the ongoing development of federal case law, and the United
States Supreme Courts Smith decision in particular, as a changed
condition. But the court makes no attempt to frame its decision
in such a manner. Instead, the court fails to recognize that
todays decision is indeed inconsistent with the analytical
approach we have approved for deciding ex post facto claims under
the Alaska Constitution.
Because the court has decided to overrule our settled
practice of construing the Alaska Constitutions ex post facto
clause no differently than the federal prohibition,22 it must
meet the higher threshold raised by the principle of stare
decisis. In my opinion, that threshold has not been met. Stare
decisis demands that we adhere to past precedent unless we are
clearly convinced the rule was originally erroneous or is no
longer sound because of changed conditions, and that more good
than harm would result from a departure from precedent.23
Assuming arguendo that the Supreme Courts decision in Smith
upsets our reliance on Federal Ex Post Facto Clause
jurisprudence, I remain unconvinced that departing from our
precedents to invalidate ASORA would result in more good than
harm. Alaska is not alone in passing legislation that responds
to this public safety threat.24 In 1994 Congress passed the
Jacob Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act,25 which conditions federal funding to
assist law enforcement on established guidelines for state sex
offender registration programs. Alaskas sex offender
registration program forms one small part of a nationwide
comprehensive regulatory program.
Nothing in the courts analysis gives reason to depart
from our established practice of interpreting Alaskas ex post
facto clause to mirror the protections of the United States
Constitution. Our adherence to this practice has not proceeded
automatically, and it has reflected our regard for the judgments
of the United States Supreme Court in this area. Accordingly, I
respectfully dissent.
_______________________________
1 Although ASORA imposes registration, re-registration,
and disclosure obligations and provides for public dissemination
of public and private information, we sometimes refer to these
provisions collectively as requiring registration, unless context
requires greater specificity.
2 John Doe is a pseudonym.
3 Chapter 41 of the 1994 session laws contains provisions
codified in Title 11, chapter 56; Title 12, chapters 55 and 63;
Title 18, chapter 65; Title 28, chapter 5; and Title 33, chapter
30. Following amendment in 1999, ASORA defines sex offender as
follows: sex offender or child kidnapper means a person
convicted of a sex offense or child kidnapping in this state or
another jurisdiction regardless of whether the conviction
occurred before, after, or on January 1, 1999. Ch. 54, 18, SLA
1999; AS 12.63.100(5).
ASORA defines sex offense as follows:
(6) sex offense means
(A) a crime under AS 11.41.100(a)(3),
or a similar law of another jurisdiction, in
which the person committed or attempted to
commit a sexual offense, or a similar offense
under the laws of the other jurisdiction; in
this subparagraph, sexual offense has the
meaning given in AS 11.41.100(a)(3);
(B) a crime under AS 11.41.110(a)(3),
or a similar law of another jurisdiction, in
which the person committed or attempted to
commit one of the following crimes, or a
similar law of another jurisdiction:
(i) sexual assault in the first degree;
(ii) sexual assault in the second
degree;
(iii) sexual abuse of a minor in the
first degree; or
(iv) sexual abuse of a minor in the
second degree;
(C) a crime, or an attempt,
solicitation, or conspiracy to commit a
crime, under the following statutes or a
similar law of another jurisdiction:
(i) AS 11.41.41011.41.438;
(ii) AS 11.41.440(a)(2);
(iii) AS 11.41.45011.41.458;
(iv) AS 11.41.460 if the indecent
exposure is before a person under 16 years of
age and the offender has a previous
conviction for that offense;
(v) AS 11.61.12511.61.127;
(vi) AS 11.66.110 or 11.66.130(a)(2) if
the person who was induced or caused to
engage in prostitution was 16 or 17 years of
age at the time of the offense; or
(vii) former AS 11.15.120, former
11.15.134, or assault with the intent to
commit rape under former AS 11.15.160, former
AS 11.40.110, or former 11.40.200 . . . .
AS 12.63.100(6).
4 Ch. 41, SLA 1994.
5 AS 12.63.010(b).
6 AS 12.63.010(b)(1). After we heard oral argument the
legislature enacted Senate Bill 185, amending various sections of
ASORA, effective January 1, 2009. Ch. 42, SLA 2008. Beginning
January 1, 2009, all registrants, regardless of conviction date,
must also disclose their e-mail addresses, instant messaging
addresses, and other internet communication identifiers. Ch. 42,
3, 6, SLA 2008.
7 AS 12.63.010(b)(2).
8 AS 12.63.010(d), .020(a)(1), (2).
9 AS 12.63.010(c). Effective January 1, 2009, a
registrant must also notify the department within one working day
of establishing or changing an e-mail address, instant messaging
address, or internet communication identifier. Ch. 42, 4, SLA
2008.
10 See AS 18.65.087(a).
11 See AS 18.65.087(b). The implementing regulations
state in pertinent part:
The department will provide information in
the central registry that is subject to
public disclosure under AS 18.65.087 for any
purpose, to any person, without charge, by
posting or otherwise making it available for
public viewing in printed or electronic form.
13 Alaska Administrative Code (AAC) 09.050(a) (2004).
12 AS 18.65.087(b).
13 AS 18.65.087(h) provides in pertinent part:
The Department of Public Safety shall provide
on the Internet website that the department
maintains for the central registry of sex
offenders and child kidnappers information as
to how members of the public using the
website may access or compile the information
relating to sex offenders or child kidnappers
for a particular geographic area on a map.
See Alaska Department of Public Safety, Sex Offender
Registration/Child Kidnapper Central Registry,
http://www.dps.state.ak.us/sorweb/sorweb.aspx (last visited July
21, 2008). Effective January 1, 2009, the department may provide
a method for, or may participate in a federal program that
allows, the public to submit an electronic or messaging address
or Internet identifier and receive a confirmation of whether the
address or identifier has been registered by a registered sex
offender or child kidnapper. Ch. 42, 5, SLA 2008.
14 See Alaska Department of Public Safety, Sex Offender
Registration/Child Kidnapper Central Registry,
http://www.dps.state.ak.us/sorweb/sorweb.aspx (follow view all
entries hyperlink) (last visited July 21, 2008).
15 See id.
16 AS 12.63.010(d)(2).
17 See Rowe v. Burton, 884 F. Supp. 1372, 1375 (D. Alaska
1994). This procedural history is described in Doe I v. Otte,
259 F.3d 979, 983 (9th Cir. 2001), revd sub nom. Smith v. Doe,
538 U.S. 84 (2003).
18 Rowe, 884 F. Supp. at 1380, 1384.
19 Id. at 1388.
20 Otte, 259 F.3d at 983, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).
21 Id. at 995.
22 Smith v. Doe, 538 U.S. 84, 105-06 (2003).
23 Id. at 106.
24 Doe v. Tandeske, 361 F.3d 594, 596-97 (9th Cir. 2004),
cert. denied, 543 U.S. 817 (2004).
25 Doe v. State, Dept of Pub. Safety (Doe A), 92 P.3d 398,
402 (Alaska 2004) (holding that ASORAs registration requirements
violated due process rights of set-aside recipients whose
suspended impositions of sentences were entered under provisions
that require substantial showing of rehabilitation).
26 State v. Murtagh, 169 P.3d 602, 606 (Alaska 2007)
(holding certain provisions of Alaska Victims Rights Act
unconstitutional because they interfered with criminal defense
investigations without adequate justification).
27 Doe A, 92 P.3d at 402.
28 In re Estate of Blodgett, 147 P.3d 702, 711 (Alaska
2006) (quoting Danks v. State, 619 P.2d 720, 722 n.3 (Alaska
1980)); see also Kahn v. Inspector Gen. of U.S. Dept of Health &
Human Servs., 848 F. Supp. 432, 437 (S.D.N.Y. 1994) (quoting
Blacks Law Dictionary 520 (5th ed. 1979)).
29 State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991)
(quoting Dobbert v. Florida, 432 U.S. 282, 292 (1977)).
30 Id.; see De Veau v. Braisted, 363 U.S. 144, 160 (1960).
31 See Smith, 538 U.S. at 92; Kansas v. Hendricks, 521
U.S. 346, 361-69 (1997); United States v. Ward, 448 U.S. 242, 248-
49 (1980).
32 Ch. 41, SLA 1994.
33 Smith v. Doe, 538 U.S. 84, 105-06 (2003).
34 Alaska Const. art. I, 7 (No person shall be deprived
of life, liberty, or property, without due process of law. The
right of all persons to fair and just treatment in the course of
legislative and executive investigations shall not be
infringed.).
35 Article I, section 1 of the Alaska Constitution
provides:
This constitution is dedicated to the
principles that all persons have a natural
right to life, liberty, the pursuit of
happiness, and the enjoyment of the rewards
of their own industry; that all persons are
equal and entitled to equal rights,
opportunities, and protection under the law;
and that all persons have corresponding
obligations to the people and to the State.
36 The state refers us to State v. Coon, 974 P.2d 386, 391-
92 (Alaska 1999) (We construe our state [ex post facto]
prohibition no differently than the federal prohibition.);
Anthony, 816 P.2d at 1378 n.1 (The parties agree that the ex post
facto prohibition of the Alaska Constitution is the same as that
of the United States Constitution.); State v. Creekpaum, 753 P.2d
1139, 1144 (Alaska 1988); and Danks v. State, 619 P.2d 720, 722
(Alaska 1980).
37 Cf. Smith, 538 U.S. at 105-06 (holding that applying
ASORA to Doe does not violate federal ex post facto clause).
38 Danks, 619 P.2d at 722 (citing and approvingly quoting
from Gryger v. Burke, 334 U.S. 728, 732 (1948) (The sentence as a
fourth offender or habitual criminal is not to be viewed as
either a new jeopardy or additional penalty for the earlier
crimes. It is a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because it is a repetitive
one.)). We there considered whether revoking Dankss drivers
license because he had committed two offenses before the
revocation statute was enacted violated the federal and state
prohibitions on ex post facto laws. Id. Noting that the Supreme
Court had rejected a similar attack on a habitual offender
statute that provided enhanced punishment for a fourth felony
conviction, we affirmed the revocation. Id.
39 Creekpaum, 753 P.2d at 1143. Creekpaum contended that
an extended statute of limitations was an unconstitutional ex
post facto law as applied to him. Id. at 1140. When he
allegedly committed the offense, the applicable statute of
limitations was five years. Id. Three years later the Alaska
Legislature retroactively enlarged the period for bringing
charges of sexual abuse of a minor. Id. Creekpaum was indicted
five years and two months after the alleged offense. Id.
Relying on decisions of the United States Supreme Court and the
Seventh and Ninth Circuit Courts of Appeals, we concluded that
because the extension did not increase the punishment or change
the elements of the offense necessary to establish guilt, it did
not violate the Federal or the Alaska Constitution. Id. at 1143-
44.
40 Anthony, 816 P.2d at 1378. Anthony raised an ex post
facto challenge to a statute making incarcerated felons convicted
of crimes prior to the statutes effective date ineligible for
permanent fund dividends. Id. at 1377-78. Relying in part on De
Veau v. Braisted, 363 U.S. 144, 160 (1960), which upheld a
statute that was enacted for valid regulatory purposes and that
was not punitive in effect, we concluded that because the
statutes purposes were compensatory rather than punitive it did
not violate either the federal or state ex post facto clause.
Id.
41 Coon, 974 P.2d at 391-92. Coon argued that judicially
changing the standard of scientific evidence violated the federal
and state ex post facto clauses. We rejected Coons argument
because the ex post facto prohibition applies only to legislative
acts, not to judicial decisions. Id. at 391. In dictum, we also
noted that even if we applied the prohibition to judicial
decisions, the Supreme Court, in Thompson v. Missouri, 171 U.S.
380, 387-88 (1898), had upheld against ex post facto challenge a
statute that made admissible in a criminal case evidence that was
not admissible under the rules of evidence as enforced by
judicial decisions when the offense was committed.
42 Danks, 619 P.2d at 722.
43 See Blue v. State, 558 P.2d 636, 641-43 (Alaska 1977)
(pre-indictment right to counsel); Lemon v. State, 514 P.2d 1151,
1154 n.5 (Alaska 1973) (right of confrontation); Lanier v. State,
486 P.2d 981, 986 (Alaska 1971) (right of confrontation); Whitton
v. State, 479 P.2d 302, 309 (Alaska 1970) (double jeopardy);
Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970)
(right to jury trial); Roberts v. State, 458 P.2d 340, 342-43
(Alaska 1969) (pre-trial right to counsel).
44 Accord Arizona v. Casey, 71 P.3d 351, 354 (Ariz. 2003)
(Normally we interpret clauses in the Arizona Constitution in
conformity with decisions of the United States Supreme Court and
its interpretation of similar clauses in the United States
Constitution. However, interpretation of the state constitution
is, of course, our province. (citation and internal quotations
omitted)).
45 Cf. Robert F. Williams, State Courts Adopting Federal
Constitutional Doctrine: Case-By-Case Adoptionism or Prospective
Lockstepping?, 46 Wm. & Mary L. Rev. 1499, 1521 (2005)
([S]tatements [adopting federal constitutional doctrine]
. . . should neither bind lawyers in their arguments nor the
court itself in future cases. It is beyond the state judicial
power to incorporate the Federal Constitution and its future
interpretations into the state constitution. (Emphasis in
original.)).
46 The principle of stare decisis requires that two
conditions be met to depart from precedent: We must conclude that
the decision was erroneous when it was decided and that the
change represents good public policy such that more good than
harm [will] result from the departure. State v. Semancik, 99
P.3d 538, 540 (Alaska 2004). Because our previous decisions have
not foreclosed the possibility of relief to Doe, we do not need
to consider whether these two requirements have been met.
47 See Coon, 974 P.2d at 391-92; State v. Anthony, 816
P.2d 1377, 1378 (Alaska 1991); Creekpaum, 753 P.2d at 1143;
Danks, 619 P.2d at 722.
48 See Doe I v. Otte, 259 F.3d 979, 993-95 (9th Cir. 2001)
(holding that applying ASORA to Doe violated federal ex post
facto clause), revd sub nom. Smith v. Doe, 538 U.S. 84 (2003).
49 Smith v. Doe, 538 U.S. 82, 92 (2003); see also Mullaney
v. Wilbur, 421 U.S. 684, 691 (1975) ([S]tate courts are the
ultimate expositors of state law.).
50 See Lemon, 514 P.2d at 1154 n.5 (explaining that this
court may adopt its own interpretation of Alaska Constitution as
long as it meets minimum standards set by United States Supreme
Court interpreting Federal Constitution).
51 As we stated in Doe v. State, Department of Public
Safety (Doe A):
We may not undermine the minimum protections
established by the United States Supreme
Courts interpretations of the Federal
Constitution. But we have repeatedly
explained that
we are free, and we are under a
duty, to develop additional
constitutional rights and
privileges under our Alaska
Constitution if we find such
fundamental rights and privileges
to be within the intention and
spirit of our local constitutional
language and to be necessary for
the kind of civilized life and
ordered liberty which is at the
core of our constitutional
heritage.
92 P.3d 398, 404 (Alaska 2004) (quoting Baker, 471 P.2d at 402).
52 Id.
53 Michigan v. Long, 463 U.S. 1032, 1041 (1983); see also
Lawrence Friedman, Reactive and Incompletely Theorized State
Constitutional Decision-Making, 77 Miss. L.J. 265, 313 (Fall
2007) ([T]he court should explicate the basis for a difference of
opinion over the meaning or application of a constitutional
provision that is textually similar that the state court should
provide a deeper justification for a constitutional ruling than
simple disagreement with a majority of the United States Supreme
Court. There is nothing wrong with such disagreement, of course;
the Supreme Court is not infallible. But . . . state
constitutional decisions that lack meaningful rationales for the
courts interpretive and doctrinal choices . . . fail to
contribute meaningfully to constitutional discourse and may well
impede the efficient administration of justice.).
54 Smith, 538 U.S. at 92; see also United States v. Ward,
448 U.S. 242, 248-49 (1980); Russell v. Gregoire, 124 F.3d 1079,
1084 (9th Cir. 1997) (referring to the two-step inquiry as the
intent-effects test).
55 Smith, 538 U.S. at 92.
56 Id.
57 Patterson v. State, 985 P.2d 1007, 1011 (Alaska App.
1999), overruled in part on other grounds, Doe A, 92 P.3d at 412
n.83.
58 Hudson v. United States, 522 U.S. 93, 99-100 (1997).
The Supreme Court has applied this inquiry in addressing
constitutional issues of double jeopardy, ex post facto, and self-
incrimination claims. See, e.g., Kansas v. Hendricks, 521 U.S.
346, 360-61 (1997) (applying the intent-effects test to double
jeopardy and ex post facto claims); Ward, 448 U.S. at 248-49
(applying test to claim alleging violation of right against
compulsory self-incrimination).
59 Smith, 538 U.S. at 92.
60 Id.
61 This assumption also makes it unnecessary to decide
whether, as some commentators have suggested, the court should
employ heightened scrutiny when reviewing the legislatures
intent. See, e.g., Wayne A. Logan, The Ex Post Facto Clause and
the Jurisprudence of Punishment, 35 Am. Crim. L. Rev. 1261, 1288-
91 (1998).
62 The Supreme Court stated in Smith that only the
clearest proof would suffice to transform a remedy designated by
the legislature as civil into a criminal penalty. Smith, 538
U.S. at 92. But in deciding whether a statute violates the
Alaska Constitution we accord the challenged statute a
presumption of constitutionality. Alaska Civil Liberties Union
v. State, 122 P.3d 781, 785 (Alaska 2005) (A constitutional
challenge to a statute must overcome a presumption of
constitutionality.). We adhere to this approach here.
Consequently, imposing a heightened presumption requiring
clearest proof of punitive effect could threaten rights protected
by the Alaska Constitution and might be inconsistent with the
responsibilities of this court. See State v. Murtagh, 169 P.3d
602, 609 (Alaska 2007) (It is the obligation of the courts to
interpret [provisions of the Alaska Constitution granting rights
to those accused of crime] so that they may be applied in
particular cases and to ensure that the rights they provide are
not infringed by any form of state action. Under Alaskas
constitutional structure of government, the judicial branch . . .
has the constitutionally mandated duty to ensure compliance with
the provisions of the Alaska Constitution, including compliance
by the legislature. ).
63 Ward, 448 U.S. at 249; Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168-69 (1963); see also Patterson, 985 P.2d at 1013
(applying Mendoza-Martinez factors to ex post facto challenge to
ASORA). The Supreme Court has applied the Mendoza-Martinez
factors to a broad array of legislative enactments to determine
whether a sanction is civil or criminal in nature. See, e.g.,
Smith, 538 U.S. at 92, 97-105 (involving civil-criminal
distinction in sex offender registration laws); Hudson, 522 U.S.
at 104-05 (concerning monetary penalties and occupational
debarment for banking law violations); Hendricks, 521 U.S. at 361-
71 (concerning civil commitment for sexually violent predators);
United States v. Salerno, 481 U.S. 739, 747-51 (1987) (addressing
whether preventative detention served remedial purpose of
preventing danger to community); Ward, 448 U.S. at 249
(concerning monetary penalties assessed for violating Clean Water
Act).
64 Mendoza-Martinez, 372 U.S. at 168-69.
65 Hudson, 522 U.S. at 101 (quoting Mendoza-Martinez, 372
U.S. at 169).
66 Mendoza-Martinez, 372 U.S. at 168.
67 Hudson, 522 U.S. at 105; De Veau v. Braisted, 363 U.S.
144, 160 (1960); Hawker v. New York, 170 U.S. 189, 196-200
(1898).
68 Smith, 538 U.S. at 100. The reality seems much
different. See infra notes 80, 81, and 85. The argument that
registered sex offenders are free to change jobs and residences
calls to mind Anatole Frances view of the majestic equality of
the laws, which forbid rich and poor alike to sleep under the
bridges, to beg in the streets, and to steal their bread.
Anatole France, The Red Lily 75 (The Modern Library 1917) (1894).
We cannot allow the mere appearance of equal freedom to obscure
the reality of its denial.
69 Smith, 538 U.S. at 111 (Stevens, J., dissenting).
70 See AS 12.63.010; AS 11.56.840 (defining failure to
register which includes failure to file change of address,
failure to re-register annually or quarterly, and failure to
supply all required information as class A misdemeanor,
punishable by up to one year in jail and up to $10,000 fine); AS
12.55.035(b)(5); AS 12.55.135(a). Effective January 1, 2009,
failure to register will also include failure to file written
notice of the establishment of or change to an e-mail or
messaging address or internet communication identifier. Ch. 42,
1, SLA 2008.
71 Doe v. State, Dept of Pub. Safety (Doe A), 92 P.3d 398,
409 (Alaska 2004).
72 See id.
73 ASORA defines aggravated sex offense as:
(A) a crime under AS 11.41.100(a)(3), or a
similar law of another jurisdiction, in which
the person committed or attempted to commit a
sexual offense, or a similar offense under
the laws of the other jurisdiction . . . .
(B) a crime under AS 11.41.110(a)(3), or a
similar law of another jurisdiction, in which
the person committed or attempted to commit
one of the following crimes, or a similar law
of another jurisdiction:
(i) sexual assault in the first degree;
(ii) sexual assault in the second degree;
(iii) sexual abuse of a minor in the
first degree; or
(iv) sexual abuse of a minor in the second
degree; or
(C) a crime, or an attempt, solicitation, or
conspiracy to commit a crime, under AS
11.41.410, 11.41.434, or a similar law of
another jurisdiction or a similar provision
under a former law of this state.
AS 12.63.100(1).
74 AS 12.63.010(d), .020(a).
75 AS 12.63.010(c).
76 Doe v. State, Dept of Pub. Safety (Doe A), 92 P.3d 398,
409 (Alaska 2004); see also Smith v. Doe, 538 U.S. 84, 111 (2003)
(Stevens, J., dissenting) (stating that these obligations are
comparable to the duties imposed on other convicted criminals
during periods of supervised release or parole).
77 Smith, 538 U.S. at 115 (Ginsburg, J., dissenting).
78 Doe I v. Otte, 259 F.3d 979, 987 (9th Cir. 2001), revd
sub nom. Smith v. Doe, 538 U.S. 84 (2003).
79 Id. at 988.
80 Smith, 538 U.S. at 109 n.* (Souter, J., concurring);
see also E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997)
(Employment and employment opportunities have been jeopardized or
lost. Housing and housing opportunities have suffered a similar
fate.); Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997) (noting
that sex offenders have suffered harm in the aftermath of public
dissemination ranging from public shunning, picketing, press
vigils, ostracism, loss of employment, and eviction, to threats
of violence, physical attacks, and arson).
81 See, e.g., Neighbor Convicted of Stalking Sex Offender,
Akron Beacon Journal, Dec. 13, 2007, available at EBSCO,
2W62W62425089428 (vigilantism); John R. Ellement & Suzanne
Smalley, Sex Crime Disclosure Questioned: Maine Killings Refuel
Debate Over Registries, Boston Globe, Apr. 18, 2006, at A1,
available at 2006 WLNR 6463014 (vigilantism); Kira Millage,
Killer of 2 Sex Offenders Pleads Guilty, Bellingham Herald
(Wash.), Mar. 10, 2006, at 1A, available at 2006 WLNR 5238375
(vigilantism); Carolyn Starks & Jeff Long, Abuser Killed Self,
Family Says, Chicago Trib., May 27, 2005, at 1, available at 2005
WLNR 23429797 (suicide); Cara Buckley, Town Torn Over Molesters
Suicide, Miami Herald, Apr. 23, 2005, at 1A, available at 2005
WLNR 23022255 (suicide); Brian MacQuarrie, Man Defends Attacks on
Sex Offenders, Crusader Gets Jail Term, Boston Globe, Dec. 5,
2004, at A1, available at 2004 WLNR 13142566 (vigilantism); see
also Richard Tewksbury, Collateral Consequences of Sex Offender
Registration, 21 J. Contemp. Crim. Just. 67, 75 (2005) (noting
that in a study of 121 registered sex offenders in Kentucky, 47
percent reported being harassed in person, 16.2 percent reported
being assaulted, 28.2 percent reported receiving harassing or
threatening telephone calls, and 24.8 percent reported receiving
harassing or threatening mail as a result of being listed on
publicly accessible registries); Alvin Malesky & Jeanmarie Keim,
Mental Health Professionals Perspectives on Sex Offender Registry
Web Sites, 13 Sexual Abuse: J. Res. & Treatment 53, 59 (2001)
(reporting that in a study of 133 mental health professionals who
work with sex offenders, 62.9 percent of respondents believed
that sex offenders listed in public sex offender registry
websites will become targets of vigilantism in the community).
82 Smith, 538 U.S. at 100; see also Smith, 538 U.S. at 109
n.* (Souter, J., concurring) (I seriously doubt that the Acts
requirements are less harsh than the sanctions of occupational
debarment . . . .).
83 Hudson v. United States, 522 U.S. 93, 105 (1997).
84 Hawker v. New York, 170 U.S. 189, 200 (1898).
85 See, e.g., Jan Hollingsworth, Protesters Hound Owner of
Pet Shop, Tampa Trib., Jan. 27, 2008, available at EBSCO,
2W62W62852777149 (describing community protests that forced
registered sex offender to close his business); Corey Kilgannon,
Threats of Violence as Homes for Sex Offenders Cluster in
Suffolk, N.Y. Times, Oct. 9, 2006, at B1, available at 2006 WLNR
17438262 (recounting neighborhoods efforts to drive out
registrants); Emily Ramshaw, Sex Offender Label Makes No
Distinction: For Many Men, Registry Has Lasting and Devastating
Effects, Dallas Morning News, Oct. 2, 2006, available at EBSCO,
2W62W61689001016 (stating that registrant has lost multiple jobs
after employers learned he was on sex offender registry); Carolyn
Marshall, Taking the Law into their Own Hands, N.Y. Times, Apr.
20, 2004, at A12, available at 2004 WLNR 4787938 (describing how
residents put pressure on landlords to refuse housing to
registered offenders); see also Tewksbury, supra note 81, at 75
(noting that 42.7 percent of respondents reported loss of job and
45.3 percent of respondents reported loss or denial of place to
live after being listed on publicly accessible registries);
Richard G. Zevitz & Mary Ann Farkas, Sex Offender Community
Notification: Managing High Risk Criminals or Exacting Further
Vengeance?, 18 Behav. Sci. & Law 375, 381 (2000) (describing a
study consisting of face-to-face interviews with thirty sex
offenders throughout Wisconsin subject to various forms of
community notification, and noting that 83 percent of respondents
reported exclusion of residence and 57 percent reported loss of
employment as a direct result of notification).
86 State v. Myers, 923 P.2d 1024, 1043-44 (Kan. 1996),
cert. denied, 521 U.S. 1118 (1997) (holding that public
dissemination provision of Kansas registration act, as applied to
sex offenders who committed their crimes before acts effective
date, violates ex post facto clause of United States
Constitution).
87 See Alaska Department of Public Safety, Sex Offender
Registration/Child Kidnapper Central Registry,
http://www.dps.state.ak.us/sorweb/sorweb.aspx (Using information
from this site to commit a crime may result in criminal
prosecution.) (last visited July 21, 2008).
88 13 AAC 09.050(a).
89 AS 40.25.110(a) (Unless specifically provided
otherwise, the public records of all public agencies are open to
inspection by the public . . . .).
90 42 U.S.C. 14071(e)(2) (The release of information . .
. shall include the maintenance of an Internet site containing
such information that is available to the public and instructions
on the process for correcting information that a person alleges
to be erroneous.); see 13 AAC 09.050(a); AS 18.65.087(h).
91 Patterson v. State, 985 P.2d 1007, 1013 (Alaska App.
1999), overruled in part on other grounds, Doe A, 92 P.3d at 412
n.83.
92 Doe A, 92 P.3d at 410.
93 Otte, 259 F.3d at 987-88, revd sub nom. Smith v. Doe,
538 U.S. 84 (2003).
94 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).
95 Otte, 259 F.3d at 989, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).
96 Smith, 538 U.S. at 97 (citing Otte, 259 F.3d at 989);
see also Pataki, 120 F.3d at 1284.
97 See, e.g., Otte, 259 F.3d at 989, revd sub nom. Smith
v. Doe, 538 U.S. 84 (2003).
98 E.B. v. Verniero, 119 F.3d 1077, 1115-19 (3d Cir. 1997)
(Becker, J., concurring in part and dissenting in part); see also
Smith, 538 U.S. at 115-16 (Ginsburg, J., dissenting). One
commentator suggests that dissemination provisions cause sex
offenders to suffer from nonlegal sanctions that have little to
do with prevention and have much more to do with reciprocity and
a norm of sanctioning. Doron Teichman, Sex, Shame, and the Law:
An Economic Perspective on Megans Laws, 42 Harv. J. on Legis.
355, 399 (2005).
99 Smith, 538 U.S. at 115 (Ginsburg, J., dissenting); see
also Smith, 538 U.S. at 111 (Stevens, J., dissenting); Doe A, 92
P.3d at 409; Andrea E. Yang, Comment, Historical Criminal
Punishments, Punitive Aims and Un-Civil Post-Custody Sanctions on
Sex Offenders: Reviving the Ex Post Facto Clause as a Bulwark of
Personal Security and Private Rights, 75 U. Cin. L. Rev. 1299,
1328 n.199 (2007) (citing Joan Petersilia, Community Corrections:
Probation, Parole and Intermediate Sanctions 1, 19-24 (Oxford
1998)) (noting that because actual supervision of parolees and
probationers is minimal due to high supervisory officer
caseloads, only about half of probationers comply with probation
requirements and therefore suggesting that sex offender
restrictions may actually exceed those of probationers and
parolees).
100 Mendoza-Martinez, 372 U.S. at 168.
101 Doe I v. Otte, 259 F.3d 979, 989 (9th Cir. 2001), revd
sub nom. Smith v. Doe, 538 U.S. 84 (2003).
102 See AS 12.63.100(6)(C)(i); AS 11.41.434-.438; Hentzer
v. State, 613 P.2d 821, 826 (Alaska 1980) (Where the crime
involved may be said to be malum in se, that is, one which
reasoning members of society regard as condemnable, awareness of
the commission of the act necessarily carries with it an
awareness of wrongdoing. In such a case the requirement of
criminal intent is met upon proof of conscious action . . . .).
103 See infra Part III.C.5; Kansas v. Hendricks, 521 U.S.
346, 362 (1997) (determining that statutory scheme allowing civil
commitment of sexually violent predators is not punitive, in part
because no finding of scienter is required, since commitment
determination is based on mental abnormality or personality
disorder rather than on criminal intent).
104 State v. Guest, 583 P.2d 836, 839 (Alaska 1978) (To
refuse such a defense would be to impose criminal liability
without any criminal mental intent.). AS 11.41.445(b) provides:
In a prosecution under AS 11.41.410-
11.41.440, whenever a provision of law
defining an offense depends upon a victims
being under a certain age, it is an
affirmative defense that, at the time of the
alleged offense, the defendant
(1) reasonably believed the victim to be
that age or older; and
(2) undertook reasonable measures to verify
that the victim was that age or older.
105 Mendoza-Martinez, 372 U.S. at 168.
106 State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). We
there identified as objectives of sentencing:
[R]ehabilitation of the offender into a
noncriminal member of society, isolation of
the offender from society to prevent criminal
conduct during the period of confinement,
deterrence of the offender himself after his
release from confinement or other penological
treatment, as well as deterrence of other
members of the community who might possess
tendencies toward criminal conduct similar to
that of the offender, and community
condemnation of the individual offender, or
in other words, reaffirmation of societal
norms for the purpose of maintaining respect
for the norms themselves.
Id. The legislature subsequently codified the Chaney factors:
In imposing sentence, the court shall
consider
(1) the seriousness of the defendants
present offense in relation to other
offenses;
(2) the prior criminal history of the
defendant and the likelihood of
rehabilitation;
(3) the need to confine the defendant to
prevent further harm to the public;
(4) the circumstances of the offense and the
extent to which the offense harmed the victim
or endangered the public safety or order;
(5) the effect of the sentence to be imposed
in deterring the defendant or other members
of society from future criminal conduct;
(6) the effect of the sentence to be imposed
as a community condemnation of the criminal
act and as a reaffirmation of societal norms;
and
(7) the restoration of the victim and the community.
AS 12.55.005.
107 Mendoza-Martinez, 372 U.S. at 168. The Third Circuit
Court of Appeals has explained its interpretation of the
distinction between the three terms:
Retribution is vengeance for its own sake.
It does not seek to affect future conduct or
solve any problem except realizing justice.
Deterrent measures serve as a threat of
negative repercussions to discourage people
from engaging in certain behavior. Remedial
measures, on the other hand, seek to solve a
problem . . . .
Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1255 (3d Cir.
1996).
108 AS 12.63.100(6), which defines sex offense, indicates
that ASORA applies to persons convicted of a range of offenses,
including AS 11.41.427, sexual assault in the fourth degree, a
class A misdemeanor, and AS 11.41.434, sexual abuse of a minor in
the first degree, an unclassified felony (the most serious type
of felony).
109 AS 12.63.020.
110 Kansas v. Hendricks, 521 U.S. 346, 362 (1997).
111 Id.; see Kan. Stat. Ann. 59-29a02(a), 59-29a03(a)
(2000).
112 Hendricks, 521 U.S. at 362.
113 AS 12.63.100(5).
114 Smith, 538 U.S. at 102.
115 Hudson v. United States, 522 U.S. 93, 105 (1997).
116 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).
117 Id.
118 Smith, 538 U.S. at 105.
119 Id.
120 Russell v. Gregoire, 124 F.3d 1079, 1091 (9th Cir.
1997); see also Wash. Rev. Code 4.24.550(1)(c)-(e) (2005).
121 Femedeer v. Haun, 227 F.3d 1244, 1251-52 & n.3 (10th
Cir. 2000); see also Utah Code Ann. 77-27-21.5(1)(f)(v) (2003).
122 AS 12.63.100(5).
123 See Whitehead v. State, 985 P.2d 1019 (Alaska App.
1999) (defendant charged with three counts of sexual assault but
who pleaded guilty to coercion did not have to register because
he was not convicted sex offender under ASORA).
124 AS 12.63.100(3).
125 AS 11.41.434(a)(1).
126 See AS 12.63.100(3).
127 See Smith, 538 U.S. at 113 (Stevens, J., dissenting):
No matter how often the Court may repeat and
manipulate multifactor tests that have been
applied in wholly dissimilar cases involving
only one or two of these three aspects of
these statutory sanctions, it will never
persuade me that the registration and
reporting obligations that are imposed on
convicted sex offenders and on no one else as
a result of their convictions are not part of
their punishment.
(Emphasis in original.)
128 Mendoza-Martinez, 372 U.S. at 168-69.
129 Doe I v. Otte, 259 F.3d 979, 991 (9th Cir. 2001), revd
sub nom. Smith v. Doe, 538 U.S. 84 (2003).
130 Ch. 41, 1, SLA 1994.
131 Otte, 259 F.3d at 991, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).
132 Smith, 538 U.S. at 102 (citing United States v. Ursery,
518 U.S. 267, 290 (1996)).
133 Mendoza-Martinez, 372 U.S. at 169.
134 Otte, 259 F.3d at 992, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).
135 Id. at 994.
136 Smith, 538 U.S. at 103-05.
137 Id. at 103.
138 Id. at 104-05.
139 Id. at 105.
140 Ch. 41, 1, SLA 1994.
141 Megans Law takes its name from Megan Kanka, a seven-
year-old girl sexually assaulted and murdered in 1994 near her
home in New Jersey. The man convicted of her murder was a
neighbor who, unbeknownst to the victims parents, had prior
convictions for sex offenses against children. Her murder
generated a national movement for mandatory registration for sex
offenders and community notification. See generally Jonathon
Simon, Megans Law: Crime and Democracy in Late Modern America, 25
Law & Soc. Inquiry 1111, 1134-35 (2000).
142 See supra note 108.
143 See Smith, 538 U.S. at 117 (Ginsburg, J., dissenting)
(And meriting heaviest weight in my judgment, the Act makes no
provision whatever for the possibility of rehabilitation
. . . .). Beginning January 1, 2009, ASORA allows for some
judicial determination of a registrants risk: the court may order
a defendant convicted [after January 1, 2009] of a violation of
AS 11.41.410 or 11.41.434 where the victim of the offense was
under 13 years of age to be subject to electronic monitoring up
to the maximum length of probation on the persons release from a
correctional facility. Ch. 42, 2, 6, SLA 2008. But even as
amended to provide for this limited risk determination for the
two specified crimes, ASORA does not authorize a court to
determine that a registrant poses no risk to society and
consequently to altogether relieve him of registration and
disclosure obligations.
144 Smith, 538 U.S. at 117 (Ginsburg, J., dissenting).
145 Otte, 259 F.3d at 983, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).
146 AS 12.63.010(d)(2).
147 AS 12.63.100(5).
148 See supra notes 70, 71, and 75 and accompanying text.
149 See supra notes 72 and 74 and accompanying text.
150 See Conn. Gen. Stat. 54-255(a), (b) (2001).
151 State v. Myers, 923 P.2d 1024, 1043 (Kan. 1996).
152 Id. at 1043.
153 Roe v. Office of Adult Prob., 125 F.3d 47, 55 (2d Cir.
1997).
154 Conn. Gen. Stat. 54-255(c) (2001). For example, a sex
offender convicted of a sexual offense against a minor who, at
the time of the offense, was under the age of eighteen and
related to the sex offender within a specified degree of kindred
may petition the court to order restricted dissemination. Id.
54-255(c)(3). The court may order the Department of Public
Safety to restrict the dissemination of the registration
information to law enforcement purposes only and to not make such
information available for public access, provided the court finds
that dissemination of the registration information is not
required for public safety. Id. 54-255(c).
155 Conn. Dept of Pub. Safety v. Doe, 538 U.S. 1, 9-10
(2003) (Souter, J., concurring). For example, a court may exempt
a convict from registration if his offense was sexual contact
with a minor aged between thirteen and sixteen years of age while
the offender was more than three years older than the minor, if
the offender was under the age of nineteen at the time of the
offense. Conn. Gen. Stat. 54-251(b) (2001).
156 Smith v. Doe, 538 U.S. 82, 103 (2003).
157 Given the significance of the states interest here, the
author of this opinion emphasizes that in his view the result the
court reaches today does not mean that no sex offender
registration act could ever satisfy Alaskas ex post facto
standard. Although six of the factors convince us that ASORA as
written is punitive, registration and disclosure are not
inherently punitive.
158 Smith v. Doe, 538 U.S. 84, 110-14 (2003) (Stevens, J.,
dissenting); Smith v. Doe, 538 U.S. 84, 114-18 (2003) (Ginsburg,
J., dissenting).
159 Doe I v. Otte, 259 F.3d 979, 993-95 (9th Cir. 2001),
revd sub nom. Smith v. Doe, 538 U.S. 84 (2003).
160 Because we decide that applying ASORA to Doe violates
the protection against ex post facto laws afforded by the Alaska
Constitution, we do not reach Does due process arguments.
Because ASORA requires both affirmative conduct by the registrant
(in registering, re-registering, and disclosing) and public
dissemination of most of the disclosed information, we do not
have to decide whether a statute requiring only registration or
providing only for distribution of otherwise public information
from an offenders criminal file would have been an ex post facto
law. And because we conclude that ASORA is an ex post facto law
under the same standard for reviewing ex post facto claims under
the Alaska Constitution that courts apply under the Federal
Constitution, we decline to adopt the standard Doe advocates.
1 State v. Coon, 974 P.2d 386, 391-92 (Alaska 1999).
2 See Smith v. Doe, 538 U.S. 84 (2003).
3 Danks v. State, 619 P.2d 720, 722 (Alaska 1980).
4 Smith, 538 U.S. at 105.
5 Alaska Civil Liberties Union v. State, 122 P.3d 781,
787 (Alaska 2005) (Article I, section 1 of the Alaska
Constitution requires equal treatment of those similarly
situated.).
6 State, Dept of Health & Soc. Servs. v. Planned
Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001).
7 Baker v. City of Fairbanks, 471 P.2d 386, 401-02
(Alaska 1970).
8 Alaska Const. art. I, 9.
9 Whitton v. State, 479 P.2d 302, 309-10 (Alaska 1970).
10 Baker, 471 P.2d at 401.
11 See State v. Coon, 974 P.2d 386, 391-92 (Alaska 1999);
State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991); State v.
Creekpaum, 753 P.2d 1139, 1144 (Alaska 1988); Danks, 619 P.2d at
722. The Alaska Court of Appeals has employed the same analysis
for both the Alaska and federal ex post facto clauses. Patterson
v. State, 985 P.2d 1007, 1011-13 (Alaska App. 1999), overruled on
other grounds by Doe v. State, 92 P.3d 398 (Alaska 2004).
12 619 P.2d at 722.
13 See Gryger v. Burke, 334 U.S. 728 (1948).
14 Danks, 619 P.2d at 722.
15 816 P.2d at 1377-79.
16 Id. at 1378, n.1.
17 753 P.2d at 1140.
18 Id. at 1143.
19 974 P.2d at 391.
20 Id. at 391-92.
21 Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173,
1176 (Alaska 1993) (quoting Planned Parenthood of Se. Penn. v.
Casey, 505 U.S. 833, 855 (1992)).
22 Coon, 974 P.2d at 391-92.
23 State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)
(quoting State v. Souter, 606 P.2d 399, 400 (Alaska 1980),
overruled on other grounds by Dunlop, 721 P.2d at 610) (internal
quotation marks omitted)).
24 By 1996 legislators in every state of the union had
enacted laws to regulate sex offenders after their release. Doe,
538 U.S. at 89; Conn. Dept of Pub. Safety v. Doe, 538 U.S. 1, 4
(2003).
25 See Doe, 538 U.S. at 89 (discussing 42 U.S.C. 14071).
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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