Smith v. Doe - Opinion Announcement

Argument of Speaker

Mr. Roberts: The opinion of the Court, in No. 01-729, Smith against Doe will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: The Alaska Sex Offender Registration Act requires convicted sex offenders to register with law enforcement authorities.

We must decide if the Act is retroactive punishment that is prohibited by the Ex Post Facto Clause.

Neither States nor the Federal Government can enact an Ex Post Facto law.

The Alaska law requires any sex offender present in the State to register and provide his name, address, place of employment, and other information even if the offense was out of State if the offender moves to Alaska, the offender is required to register.

Some of the information is kept confidential but most is made available to the public.

Now, both of these respondents were convicted of the sexual abuse to the minor which is an aggravated sex offense in the State of Alaska.

They challenge the Act's retroactive application as unconstitutional.

The Court of Appeals for the Ninth Circuit agreed and invalidated the statute as to them.

We granted certiorari.

The framework for our Ex Post Facto inquiry is well established.

First, the Court must ascertain whether the legislature meant to enact a civil regulatory scheme; second, even if that intent is present, we examine whether the Act is so punitive in effect as to negate the State's intention to deem it civil.

In ascertaining the legislative intent, we consider the statute's text and structure, here the statute sets forth the legislative findings that sex offenders pose a high risk of reoffending that protecting the public from sex offenders is the law's primary interest, and that release of certain information about sex offenders will assist the public safety.

We have held in an imposition of restrictive measures on sex offenders that judged to be dangerous is a legitimate, non-punitive governmental objective and the text of the statute suggest us that in this case, the legislator sought to create a civil scheme designed to protect the public from harm.

Also, probative of the legislature's intent is the manner of the statute's codification.

The notification provisions of the Act are codified in Alaska's Health Safety and Housing Code.

This confirms our conclusion that the statute was inteded as a non-punitive regulatory measure.

On the other hand, the Act's registration provisions are codified in the State's criminal procedure code and this might seem to point in the opposite direction.

The location and labels of the statutory provision do not however by themselves transform a civil remedy into a criminal one and the partial codification of the Act in the State's criminal procedure code does not negate our conclusion that this is a civil, not a criminal scheme.

In analyzing the effects of the Act, we first consider whether in our nation's history and traditions the regulatory scheme has been regarded as punishment.

Sex offenders registration statutes are fairly recent origin.

Any initial resemblance to the shaming punishments of the colonial period is misleading.

In contrast to those punishments, the Act's stigma results not from public display for ridicule, but from the dissemination of accurate information about a criminal record, most of which is already public.

Second, the Act does not subject respondent's to an affirmative disability or restraint.

The Act does not require the updates to be made in person.

The registration system does not resemble probation or supervise release because the registrants are free to move where they wish and to live and work with other citizens with no supervision or need for prior permission from authorities.

Third, the Act does not promote the traditional aims of punishment.

The fact that it might deter future crimes is not as positive as any number of regulatory programs might deter crime without imposing punishment.

The Act's registration obligations are not retributive.

Fourth, the Act has a rational connection to a legitimate non-punitive purpose of public safety which is advanced by alerting the public to the risk of sex offenders in their community.

Fifth, the regulation is not excessive with respect to its non-punitive purpose.

Alaska may legislate with respect to convicted sex offenders as a class rather than require individual determination of their dangerousness, because the conviction for a sex offense provides evidence of substantial risk of recidivism.

Why dissemination is easy accessibility of the offender information does not render the Act excessive given the general mobility of our population and the passive nature of the notification system.

The regulatory means chosen are reasonable in light of the non-punitive objective.

Respondents cannot show, much less by the clearest proof which is what our precedents require that the effects of the Act negate the State's intention to establish a civil regulatory scheme.

The Act is non-punitive and its retroactive application does not violate the Ex Post Facto Clause.

The judgment of the Court of Appeals for the Ninth Circuit is reversed and the case is remanded.

Justice Thomas has filed a concurring opinion; Justice Souter has filed an opinion concurring in the judgment; Justice Stevens has filed a dissenting opinion; Justice Ginsburg has filed a dissenting opinion in which Justice Breyer joins.