Artway v. Attorney General of New Jersey

complaint); Technolo United dismissal cf. Co., 407 Liberty Mutual Ins. Corp. v. A. ARTWAY gies Alexander 224,225 (reject 591, 555 N.E.2d Mass. v. non that conve- ing suggestion forum “any doctrine”). all-or-nothing Al an niens is The OF the ATTORNEY GENERAL questions in different though deciding related JERSEY; NEW OF Chief of STATE and ineffi may often be inconvenient courts Township, Woodbridge Police New cient, flexi contrary rule would reduce the Jersey; Superintendent The of the New allow liti bility doctrine and would Jersey Police State analysis by joining the Gilbert gants to skew present ease lack claims that merit. Attorney Jersey of New and Su General could contempt claim definition Jersey perintendent of the New State District of New in the be decided Southern Police, Appellants in No. 95-5157. York, grant to inappropriate it was not respect judgment with to summary Alexander A. ARTWAY to dismiss remainder claim and grounds. non conveniens action on forum dis parenthetically add The OF the ATTORNEY GENERAL explic arguably have made should trict court JERSEY; NEW Chief of STATE OF conditional, because

it that the dismissal Township, Woodbridge Police of New district court plaintiffs represented Superintendent Jersey; The Jer New governing of limitations con statute sey State Police expired in Britain. questions had Great tract v. Generali Calavo Growers California Cf. Woodbridge Township, Chief of Police of (2d Cir.1980) Belgium, 632 F.2d Jersey Appellant in No. 95-5194. New dismissal (affirming non conveniens forum remanding of whether for determination but Alexander A. ARTWAY dismissal), to conditional defendants would consent denied, 1084, 101 t. cer (1981); Schertenleib, 871, 66 L.Ed.2d 809 OF the The ATTORNEY GENERAL (affirming requir but F.2d at 1166 dismissal JERSEY; NEW Chief of STATE OF defenses). limitations defendant waive Township, Woodbridge New Police of to remand the case There is no need Jersey; Superintendent of New Jer to waive obtain the consent of defendants sey Police State however, here, because defen such defenses already to do so—and dants consented Artway, Appellant Alexander A. jurisdiction the British submit in No. 95-5195. following dis the district court’s first courts — Moreover, ap plaintiffs missal have order. and 95-5195. Nos. 95-5194 argu parently their limitations withdrawn argued seriously ment and have not Appeals, United States Court forum, inadequate apart Great Britain Third Circuit. plain purported from the inconvenience Argued Oct. 1995. litigate required there. tiff would suffer April Decided CONCLUSION stated, judgment For the reasons court affirmed.

the district (Argued)

Deborah T. Attorney Poritz Gen- Jersey, Joseph Yannotti, eral New L. As- General, Attorney sistant Rhonda S. Berlin- er-Gold, Etzweiler, Larry Finkel, Stephan B. General, Trenton, Deputy Attorneys NJ, for Attorney Jersey Appellant General of New No. 95-5157. (Argued),

Neal H. Flaster Richard L. Ru- din, Weiss, Jeremy Weiner Lesniak and G. Parsippany, NJ, for Chief of Police of Wood- bridge Township, Jersey, Appellant New No. 95-5194. Deo, Dolan, Walsh, Crummy, Griffinger Del (Argued), United States Hochberg Faith Vecchione, Newark, NJ, A. for Alexander & George S.

Attorney, Rabner Stuart Artway, Appellant in No. 95-5195. Attorneys, Leone, Assistant United States NJ, Hunger, Newark, Assistant Frank W. (Argued), Rutgers Ronald K. Chen Consti- Clinic, University General, Litigation Rutgers Attorney Leonard Schaitman tutional Law, Newark, NJ, Staff, for American Keats, Attorneys, School Appellate Wendy M. Jersey, of New Ami- Civil Liberties Union Justice, Civil Department States United cus-Appellant No. 95-5195. DC, Division, States Washington, United America, Amicus-Appellant Paulsen, Scatchard, in No. 95- Capehart R. & Glenn Senate, P.A., Trenton, NJ, Jersey for New 5157. Amicus-Appellant in No. 95-5157. Berman, Rose, Mudge, Geoffrey Guth- S. Vacco, Attorney Dennis C. General Ferdon, City, for rie, New York Alexander & York, Graffeo, A. of New Victoria Solic- State Kanka, Zim- Kanka, Dick Richard Maureen General, Schiff, Deputy H. itor Peter Solici- Deal, mer, Cunningham, Nathan Randall General, Oser, Attorney tor Andrea Assistant Fowler, Dunn, Thomas Man- Tillie Jennifer General, Department New York State Saxton, ton, Molinari, Christopher Jim Susan York, Law, Albany, NY, for State of New Smith, Amicus-Appellants No. 95-5157. Amicus-Appellant in No. 95-5157. BECKER, ROTH, (Argued), S. Lawrence Circuit J. Gibbons Present: John SHADUR,* Judges, Judge. District Romberg, Christopher Lustberg, Jonathan Table CONTENTS FACTS.1243 I. BACKGROUND .1245 HISTORY

II. PROCEDURAL

III. MOOTNESS.1245

IV. RIPENESS.....'.1246 A. Introduction.1246 Attainder, Facto, Challenges.. 1247 Jeopardy and Double Ex Post Bill of B. The Hardship Denying 1. Review.1247 for Judicial Review.1249 Fitness Issues Claims.1251

C. Due Process

1. Burden of Persuasion.1251 2. Notice.1252 Summary Unripe D. Claims.1252 REGISTRATION. V. Attainder, Facto, Bill of and Double the Ex Post A. “Punishment” Under Jeopardy Clauses.1253 Subjective Purpose.1254 1. v. Braisted: De Veau Objective Proportionality.. 1254 Purpose through Halper: 2. United States v. Objective History.1256 Purpose through 3. Austin United States: Purpose Objective Ranch: 4. v. Kurth Department Revenue Deterrence.1258 Department of v. Morales: Effect.1260 5. Corrections California Inquiry for the Nature Pro- Kennedy v. The 6. Mendoza-Martinez: ceedings .1261 Test(s).1263 Synthesizing Jurisprudence: B. The Megan’s Law Evaluated.1264 Registration Provisions C. The Purpose.1264 1. Actual Objective Purpose.1264 3. Effects.1266 Summary Registration Claims.1267 D. EQUAL VI. PROTECTION.1267 DUE PROCESS.1268 VII. Shadur, by designation. District Milton United States

* Hon. I. Illinois, sitting Judge District for the Northern VIII. VAGUENESS .1269 UNCONSTITUTIONAL IX. ABSTENTION.1270 PULLMAN X. CONCLUSION.1271 Jersey, THE because moved from

OPINION COURT he has New OF ripeness problems preclude us from reach- BECKER, Judge. Circuit the lion’s share of claims. thought Artway Alexander that he had First, Artway’s Megan’s claims that Law’s by serving paid society his debt to seventeen provisions notification violate the Ex Post jail years for a sex offense. After he was Facto, Attainder, Jeopar- Bill of and Double released, Artway community, in a settled se- dy unripe. Clauses are Sex are offenders Then, employment, cured and married. on subject prosecutor notification 31, Jersey October New enacted Me- significant finds a risk of recidivism-a gan’s requires Law. The Law certain sex that, respect Artway, determination with including Artway like those found offenders — yet easily has not been made and cannot be “repetitive sentencing compul- to be clear, therefore, forecasted. It far from register sive”—to local law enforcement. Artway subject requires community also will It notification ever notifica- registrants Moreover, novel, Artway deemed a future risk. tion. cannot make the sought injunction against difficult, the enforcement and fact-sensitive determination Megan’s pursuant to 28 U.S.C. provisions whether the notification constitute § § arguing that it U.S.C. “punishment”-the question central under him, punishes unconstitutionally, a second all three clauses-without a record of how alleged provides time. He also that the Law implemented notification will be and what procedural protections. insufficient (or concrete effects it will have on Artway situated). summary proceedings After in which similarly no those Although Art- virtually evidence was heard and no factual way’s contention that notification constitutes developed, record the District Court for the punishment prima quite persuasive, facie Jersey District of New held that the notifica- judicial the claim will be fit for review aspects Megan’s tion Law violated the Ex (or offender) Artway when some other sex Post Facto United Clause of the States Con- process submits to the notification and the enjoined stitution and their enforcement impact is chronicled the record. Similar- against Artway. upheld court the con- ly, yet since has not been classified stitutionality registration com- Law’s Law, under his claim that he is due ponent. Both appealed. sides process receiving more notice of These appeals present cross numerous challenging hypothetical determination re- (some difficult): questions quite of which garding dangerousness his unripe. (1) registration Do the provi- and notification regard Artway’s With to claims that Megan’s sions of “punish- Law constitute currently justiciable, we hold Me- first that ment” meaning within the of the Ex Post gan’s registration component Law’s not does Facto, Attainder, Bill Jeopar- of and Double Facto, violate the Ex Jeopardy, Post Double dy (2) Clauses of the U.S. Constitution? Is Bill of impermissible Attainder Clauses as Megan’s (3) unconstitutionally vague? Law “punishment.” following theAs discussion Megan’s Does equal protection Law violate show, “punishment” will compli- the law on is (4) process? any or due Are or all of Art- disarray. cated and in some We devote a way’s (5) unripe claims or moot? and Was the therefore, significant portion opinion, of this district court’s not to abstain decision under explaining synthesizing to and the caselaw on Co., Railroad Commission Pullman “punishment” in order to issue formulate the (1941), 85 L.Ed. 971 legal correct test. proper? (1) “repetitive We also hold that the and Timing important only punish- not ment, compulsive” Megan’s of judicial but classification proper also to decision- (2) making. equal Although reject protection; does offend the the State’s not. contention Artway’s alleged that unreliability claims are moot and unfairness of Art- involving compulsive” nated crimes sexual assault after determina- way’s “repetitive and register process; Megan’s Me- Law was enacted to due not violate tion does 2C:7-2b(1). local law enforcement. N.J.SA. unconstitutionally vague as is not gan’s Law committing him; offenses did Those these and com the district court applied to and incarceration, pleting probation, pa all and Pullman. refusing in to abstain under not err regis the enactment role before Law’s must judgment the the of therefore vacate if, sentencing, ter at the time of their enjoins as it the en- court insofar district found conduct was to be “characterized a Tier 3 notification and forcement Tier pattern repetitive compulsive and behav Law, judg- Megan’s and affirm that under ior.” Id. registration pro- holds the ment insofar it notification) of the (including Tier 1 visions registrant provide following the The must Law constitutional. to the information chief law enforcement offi municipality in

cer of the which he resides: name, number, race, sex, age, security social I. BACKGROUND FACTS birth, weight, eye hair height, date of Jersey jury Art- a convicted In New residence, color, of legal address address of statutory way sodomy. The elements residence, any temporary legal current force, the Artway’s require not but crime did place employment. date and N.J.SA. and, as had used violence judge found he 2C:7-4b(1). He must confirm his address result, him to an indefinite term sentenced days, every ninety notify municipal the law Pallone, F.2d Artway v. prison. See moves, agency if he enforcement and re- (3d Cir.1982).1 In 1170-71 n. 3 & register agency with the law enforcement addition, prior statutory part on a based in any municipality. new N.J.S.A. 2C:7-2d to e. conviction, finding for judge made a rape sentencing purposes conduct registration agency then The forwards by pattern repetitive, “characterized was information, registrant’s any as well as serving id. After compulsive behavior.” have, information it to the additional sentence, Artway years was seventeen prosecuted prosecutor county (he fugitive from had been released registrant. N.J.SA 2C:7-4e to d. The 1975). turn, prosecutor, forwards informa- Police, to the of State which tion Division Jersey legislature enact- New registry incorporates into a central Law-formally New Jer- ed prosecutor county notifies the Act, Pub. sey’s Registration Sexual Offender registrant plans to Id. which the reside. (codified L.1994, at N.J.SA. Chs. information available to law enforce- This 7-11)-in response public out- 2C:7-1 states, Jersey, agencies of other ment New following rape and of a cry the brutal murder the United N.J.SA 2C:7-5. States. seven-year-old girl, Megan Megan, Kanka. open registration information community not know parents, and the did her agen- public inspection. Law enforcement murderer, lived across the who are authorized to release “relevant cies Kankas, was a twice-convict- street concerning regis- necessary information rushed legislation offender. The was ed sex necessary public pro- ... trants when Assembly emergency as an mea- floor tection,” but in accordance with sure, process, and skipping the committee procedures we describe below. notification floor; member debated on the no was comply the sex to with Failure of offender it. against voted fourth-degree Id. registration is a crime. registration require Megan’s Law enacts stage, provisions notification The At this the and three tiers of notification. ment county of prosecutor the provision requires persons triggered. The registration all are to must registrant plans live desig in which the complete a sentence for certain who photographs, her for for and sodomized two friends nude 1. The victim testified that and area, her, stripped her to a tied took her wooded an hour. See id. over tree, her, pose to urinated on forced her to provided through the information cated that he will reoffend released into consider and, community in consultation with the registration the and the available record re- convicting county, deter prosecutor support veals evidence credible to this find- low, poses registrant the mine whether ing, then the offender will deemed a risk_” moderate, high of or risk re-offense. high Conversely, Id. at 16. “if 2C:7-8d(1). making In that deter N.J.S.A. physical the offender demonstrates a condi- mination, prosecutor must the consider reoffense, tion that minimizes the risk Attorney guidelines promul the General then the offender will be deemed to be a gated pursuant to the Act. N.J.S.A. 2C:7-8a low Id. risk.” to b. The form of notification under Ters 2 and low, of risk moder The determination name, registrant’s 3 includes the a recent ate, high registrant places in or the corre physical offense, photograph, description, his categories: notification sponding Tier Tier address, place employment schooling, or (low risk), or 3. Under the Ter Ter description plate and a and license number of prosecutor notify must law enforcement registrant’s the vehicle. at 39. Id. Those likely agencies to registrant. encounter the notified Ter 2 under are informed that the 2C:7-8c(1). (moder N.J.S.A. Under Ter is not information to be shared the risk), prosecutor, the working ate with local general public, every notification must agencies, notify law enforcement must warning contain a about criminal the conse- schools, centers, day licensed care summer quences vandalism, threats assaults camps, designated community organiza against registrant any or of his associ- in tions involved of children or the care ates. 40. Id. at support or rape of battered women victims. Jersey Court, The New up- 2C:7-8c(2). (high N.J.S.A. Ter 3 Under holding constitutionality Megan’s risk), agencies law enforcement required Poritz, in Doe v. 142 N.J. 662 A.2d 367 notify public members likely (1995), the following proce- read additional registrant. encounter N.J.S.A. 2C:7- protections First, dural into the statute. 8c(3). 2Ter must likely notice be confined to those prosecutor The makes future risk registrant. encounter Id. at using “Registrant determination Risk Second, prosecutor A.2d 367. give must Scale,” by promulgated Assessment the At notice, registrant “impossible unless as a torney Registration General. and Com matter,” practical any before Ter or 3 munity Notification Bench Manual 26. The 30-31, Id. notification. 662 A.2d 367. categories Scale matrix is a of thirteen or Third, provide a court must opportunity (1) ganized headings: into four larger Seri camera, judicial for a hearing, which Offense; (2) ousness of History; Offense registrant persua- bears the burden (3) Offender; (4) Characteristics of the sion. Id. at 662 A.2d 367. . Community Support prosecutor The Id.2 every registrant Because is classified at a categories scores each these different minimum Ter risk-low, moderate, under this lowest level levels of high. accompanies doing so, every registration. Id. notification guided by he or she is commentary requires Ter 1 notice law examples. factual enforce- includes ment, Id. at Ter 2 17-25. This risk whereas and Ter both result initial score is mul tiplied by community. notice to the catego Consequently, coefficients that differ ry, purposes discussion, and the data of the subsequent is tabulated for a final risk “registration” registration will Finally, assessment score. Id. 26. include prosecutor notification, must Ter 1 consider whether two while “notification” will exceptions apply. “If an offender has indi- refer to 2 and Ter Ter 3 notification. complete Acts; (9) categories list History Response is as follows: of Anti-Social Force; (2) Contact; Degree (3) Degree Abuse; Age Treatment; (10) (11) of of Substance Thera- Victim; Selection; (4) (5) of Victim Number of (12) peutic Support; Support; Residential and Offenses/Victims; (6) Duration of Offensive Beh (13) Employment/Educational Stability. Id. avior; Offense; Length of Since Last Time

1245 (D.N.J.1995). It then the 688 invalidated HISTORY II. PROCEDURAL Megan’s using provisions of Law notification relief, pursuant declaratory Artway sought punishment of Ken- the seven-factor test 1988, § § 2201 and 42 U.S.C. to 28 U.S.C. Mendoza-Martinez, nedy v. Megan’s Law that enforcement alleging 564, 567-68, 83 644 9 L.Ed.2d his federal consti against him would violate Jersey, enjoined The court New protection, including equal rights, tutional preliminarily permanently, and then first punished right the not to be process, and due enforcing provisions the notification from Facto, Bill in of the Ex Post violation Artway’s Megan’s It did not Law. reach Attainder, Jeopardy Clauses. and Double arguments, other such as Due Process the court the ease the The district decided Equal challenges presses he Protection summary fashion. After State most this before Court. injunc Artway’s motion moved to dismiss relief, Artway the district court to urged tive Artway appeals the district court’s original as one for his motion sum construe ruling registration that and Tier 1 notifica obliged. mary judgment. The court It al constitutional, presses tion are his Due testimony, discovery, heard no lowed no Equal arguments Process and Protection Instead, it findings of ruled as made no fact. find Tier 2 3 should this Court and Tier complex a law on issues matter of all appeals constitutional. The State the district pending it. before 2 holding court’s Tier and Tier 3 are opened opinion brushing court its The juncture, unconstitutional. At this these is Artway’s challenge to claims. ripeness aside present questions, subject legal all sues registration court then held that The plenary See American Medical Im review.5 Megan’s constitution- component of Law was Corp. Fire Ins. aging v. St. Paul & Marine 2 al, Tier Tier 3 notification but that (3d Cir.1991). Co., 692 F.2d In doing Ex Post violated the Facto Clause. so, this an abstract issue of it treated case as III. MOOTNESS Ex court caselaw on the

law. The recited Punishment, Facto, Post Cruel and Unusual matter, reject the As threshold Attainder, Jeopardy Bill of and Double Artway’s appeal State’s assertions cases, court It also invoked state Clauses. has out of New moot because he moved and, might expected, it discussed the claim, Jersey. Artway longer no has a live resulting record Letter:3 The con- Scarlet argues, move from the State because his piece describing tains one of information duty to Jersey register. his New voided Megan’s effects Law on Art- the indirect Lujan points us to v. State Defenders Angel way: copy of a flier dis- Guardian Wildlife, Artway’s warning community peo- tributed (1992), in which L.Ed.2d ple to “BEWARE.” did not held that environmentalists they could not injury in have in fact because is not discussed But even evidence evidence, plane Instead, any as a show concrete such opinion. district court’s ticket, foreign to return to the registration compo their intent court asserted challenged country environmental is constitutional “for where nent of Noble, expressed place. action take Like the environ in Arizona would the reasons argues, Lujan, Jersey New mentalists in ].” Ariz. 829 P.2d 1217 Art [171 General, 666, Artway’s intends to Attorney F.Supp. assertion that he way “bald aspect Mockingbird propriety absten 5.One of Pullman 3. included Kill a It also To Dialogues tion-i.e., important policies of what Plato’s tutes its discussion consti- state whether "punishment." ruling- disrupted by a federal would be court Biegen is reviewed for abuse discretion. never submitted to even Because Fauver, (3d Cir. F.2d 750-51 wald v. Law, registration provisions Megan’s However, 1989). part plays no this distinction Rather, not the of notification. flier is result notoriety flowed seems to have litigation. 1246 conjecture Jersey standing. ques ... rests on than New that for central “[T]he

return to entirely hypothetical.” inquiries changes tion in mootness whether and is is prevailed in that at begin circumstances else, on nothing record is clear it But ning litigation any have forestalled Artway’s obligation register to shows that meaningful occasion for relief.” Huber v. returning Jersey, to New keeping him from Indus., Inc., (3d 85, 107 Casablanca F.2d 916 presents a real and that situation controver- Cir.1990) (internal omitted), quotations over sy. litigants Lujan merely opined in The grounds by ruled on other Milwaukee Brew site, they planned that to visit the in a for- ery v. Workers’ Pension Plan Jos. Schlitz country, eign day” “some in the future. 504 —Co., -, 981, Brewing 115 S.Ct. U.S. 2,n. 112 2. U.S. at 564 & 2138 & n. (1995); 130 932 L.Ed.2d accord Zellous v. contrast, Artway, Jersey- in lived in New (3d Associates, 94, Broadhead 906 F.2d 100 home, family, a where he established Cir.1990) (“An ‘(1) action moot becomes when 3, job-until shortly March He left 1995. expectation there is no reasonable that the passed Megan’s after Law was and has (2) alleged events will recur ... and interim Megan’s keeping sworn him from completely relief or events have eradicated Indeed, moving brought litiga- back. he ”) (quoting effects of violation.’ Coun tion, se, originally pro in order to remain Davis, 625, ty Angeles 631, Los v. 440 U.S. Artway Jersey there. cannot New live 1379, (1979)).6 1383, 99 S.Ct. Law, complying Megan’s without either him, opportunity meaningful undoubtedly facing which burdens relief is still prosecution. Especially present here. given the constitu- ceased the activi- interstate, ty right unquestionably granted which him Shapiro tional move see stand- v. 618, 1322, Thompson, ing living Jersey only 394 upon U.S. 89 S.Ct. 22 New — — (1969), L.Ed.2d threats of enforcement. And he 600 this Hobson’s choice has sworn con- injury stitutes sufficient fact his desire to return if even under Law is Philbrook, Lujan’s standing Begins analysis. invalidated. 513 Cf. (1975) 19, F.2d 24 (holding case not moot being factually In addition to differ plaintiffs though even sold second automobile Lujan, ent from the State’s mootness claim on they threats of benefit termination when legally Lujan different from case. continuing demonstrated desire own two standing, inquires addressed which whether ears). proper party bring someone is the a law beginning suit at the of the case. Doctrinal IV. RIPENESS ly, satisfy requirements, core Article III A. Introduction (1) standing requires plaintiff that the suffer (2) fact, injury injury fairly that nextWe examine the State’s asser (3) conduct, challenged facto, to the traceable tions post ex double ruling attainder, that a jeopardy, favorable would redress the process bill and due injury. Lujan, III, 504 112 challenges ripe. See U.S. are not part Article Mootness, mandate, at 2136-37. on the or controversy” other its “case re hand, party quires parties asks whether a who has injury estab to suffer or come into standing lished danger suffering has now injury lost immediate because be changed facts of her case challenging have over time. fore See statute. O’Shea v. Thus, Littleton, 488, satisfying prohi 494, 669, 675, the threshold for 414 U.S. 94 S.Ct. (1974). against bition mootness is somewhat lower L.Ed.2d 674 The basic rationale resume, analysis. accompany- voluntarily our note 34 ceased but could see United infra Co., States v. W.T. Grant 345 U.S. 73 S.Ct. text. (1953); (4) wrongs L.Ed. to a though class that continue those named major exceptions: also Mootness contains four not, Iowa, plaintiffs do see Sosna (1) wrongs consequences, that have collateral see 95 S.Ct. exceptions L.Ed.2d 532 These York, Sibron v. New here, directly applicable are but 1889, 1897-98, (1968); 20 L.Ed.2d they further demonstrate how mootness doctrine wrongs capable repetition yet evading diverged standing doctrine to allow review, Wade, see Roe v. real courts to decide changing controversies in the face of (1973); wrongs L.Ed.2d 147 that are circumstances.

1247 carefully distinguish be prevent challenges, we must is “to requirement ripeness the provi registration and notification courts, prema tween the through the avoidance the not, Megan’s shall howev entangling them sions of Law. We adjudication, ture er, Facto, distinguish among the Ex Post Bill Abbott disagreements.” in abstract selves Clauses; Attainder, Gardner, 136, 148, Jeopardy and Double 87 S.Ct. v. 387 U.S. Labs. (1967). respect requi Ripeness differences with to the 1507, 1515, 681 their 18 L.Ed.2d any, interfering legisla “punishment,” if are not relevant sites of prevents courts from so, necessary to do here. until it is tive enactments judicial quality of decision- the

and enhances ensuring present courts making by that cases Hardship Denying Review 1. review permit effective adequate an record determining The first factor for Ripeness in decisionmaking. See id. hardship denying ripeness is the review. (1) hardship factors: the weighing two volves Labs., Abbott 387 U.S. at 87 S.Ct. withholding consider court parties 1515-16. The district court considered (2) ation; for fitness of the issues the factor, distinguish but failed to between 149, 87 387 U.S. at S.Ct. judicial review. See aspects of registration and notification Me at 1515-16.7 hardship inquires factor gan’s Law. The prosecution is “credi whether the threat of Attainder, Facto, Ex Bill of B. The Post ble,” merely “speculative,” and not so as Challenges Jeopardy and Double III. purposes for of Article See be concrete Megan’s Artway contends that Farm, Nat’l Babbitt v. Workers Un United punishment imposes unconstitutional Law 2301, 2308-09, ion, 289, 298, 442 U.S. 99 S.Ct. Attainder, Facto, Ex Post Bill of under the (1979). Although preenforce Jeopardy Clauses. Under and Double exception rather than the ment review is the Clause, government Ex Post Facto rule, alleged plaintiff has “[w]hen retroactively “inflicts a apply that a law engage in a course of conduct intention to annexed to punishment, than the law greater a constitutional inter arguably affected with Bull, crime, v. committed.” Colder when statute, est, proscribed by a and there but (1798). Dall.) (3 386, 390, 1 L.Ed. 648 prosecution there threat of exists a credible Clause, legisla the Bill of Attainder Under under, required to await should not be he “[[legislative engage are forbidden tures undergo prosecution as the a criminal form, acts, apply what their no matter (internal seeking relief.” Id. sole means of easily or to ascer either to named individuals omitted); Thomp accord quotations Steffel way group of a in such a tainable members 1209, 1216, son, 452, 459, 39 94 on them without punishment as to inflict (1974) (“[I]t necessary is not 505 L.Ed.2d Brown, 381 judicial trial.” United States expose himself to actual petitioner first 1707, 1715, 437, 448-49, U.S. entitled to chal prosecution to be arrest (1965). Finally, Double L.Ed.2d 484 exercise claims deters the lenge a statute he alia, “a sec Jeopardy prohibits, inter Clause Labs., rights.”); Abbott of his constitutional after for the same offense prosecution ond (holding 154, 87 at 1518-19 U.S. for multiple punishments ... and conviction labeling challenge to a statute a business’s Halper, States v. the same offense.” United not been though company had ripe even 1892, 1897, prosecution). specifically with threatened L.Ed.2d 487 when afforded review even This Artway’s argument is that The crux of to- no active measures “pun- the state has taken imposes unconstitutional Presby- example, For prosecution. analyzing ripeness of these ward ishment.” law, good to use and we continue employed three-part course still test We have sometimes See, Tp. declaratory judgment e.g., ripeness context: New Hanover as well. formulation (3) interest; conclusivity; adversity of Corps Engineers, 992 Army States v. United Wyse Systems, utility. Technology, Step-Saver Inc. v. Data Cir.1993). (3d two-part deem the F.2d 470 (3d Cir.1990). F.2d analysis apt this case. more However, two-part Supreme Court’s test is of Florio, Presbyterian fel, tery v. Flo Orthodox Church Abbott Labs. and he faces the (3d Cir.1994), rio, complying putatively 40 F.3d 1464 we held decision of awith inval pastor’s preenforcement challenge a church suffering Registration id law or prosecution. Jersey’s anti-discrimination presents contingency Artway. to New law was no for If he ripe adjudication pastor when the Jersey, provide had resides in New he must cer speak against his intention to ho announced tain information to local law enforcement. though mosexuality government high Law, even the profile Megan’s had And the of actually prosecute. not threatened to particular, That virtually ease assures possibility Artway the state would not disavow the of prosecuted engages will be if he prosecution allegedly for activities outside the church protected returning his conduct: enough to Jersey fact, was make the threat “real and registering. New without In Attorney substantial.” Id. at 1468. the General assured the district argument court oral prose at that she would hand, “[m]any deny On the other cases Artway register. cute if he failed to ripeness straight-forward ground on the General, Artway Attorney F.Supp. anticipated injury the simply events and (D.N.J.1995). 670 n. 4 Under these justify present too remote and uncertain to circumstances, prosecution the threat of Art- adjudication.” al., Wright 13A Charles A. et way any faces Supreme satisfies test of the 3532.2, § Federal Practice and Procedure Court and of this Court: these threats are (1984). contingency A substantial is the credible, real, and substantial. impediment preenforcement classic to a chal lenge. example, For in New Hanover Town sharp contrast, In Artway’s chal ship v. Army Corps Engi United States of lenge to the provisions of neers, (3d Cir.1998), 992 F.2d notification we Megan’s prong. Law fails this Unlike held challenge that a to construction of a registration, notification involves a crucial municipal unripe waste landfill was because contingency: only if, after registering, yet granted necessary state had not Artway is classified as a moderate or quality water Although certificate. high risk of re-offense will he face notifi Army Corps Engineers granted had an cation. hinges This classification on a permit plaintiffs other sought Jersey prosecutor’s New future decision challenge, explained, construction of the to be applying reached after Attorney landfill still could not commence: “[T]he ef “Registrant General’s Risk Assessment fects Craps’ deciding project] [the supra page Seale.” See 1244. The State may proceed ... will not be felt a concrete prosecutor, possessing pertinent infor way unless and grants until the [state] [the present record, mation not in this scores project] Id.; quality a water certificate.” see categories these thirteen for different lev Mitchell, also Acierno v. 6 F.3d 975-77 risk, els of employing corresponding (3d Cir.1993) (holding challenge zoning pages guidelines. eleven prosecu The unripe decision when review board had not multiplies by tor then differing coeffi yet decision); Wilmington made final Fire cients, tabulates the data for a risk as fighters City Wilmington, Local 1590 v. score, sessment and considers whether (3d Cir.1987) Dept., Fire 824 F.2d exceptions apply. (holding challenge yet pro uncreated motion unripe they lists “pure because were Ademo, inAs New Township, Hanover ly a conjecture”). matter of Wilmington Firefighters, whether this

Artway urges registra contingency that both the pass will ever come to is a mat- tion components speculation. notification may ter of pass upon Law constitute “punish hypothetical unconstitutional matters. And faces no ment” Facto, under the Ex Post hardship denying Double review of his notifica- Jeopardy, and Bill of Attainder challenges point. Clauses. tion at this If registers, he Artway’s challenge registration provi and if the State decides that his situation sions Megan’s hardship notification, Law satisfies community warrants he prong. Babbitt, petitioners Like enjoin Thus, seek to that action at that time. Stef- challenge unripe held a constitutional be- “hardship” precludes alone review factor for more detailed factual cause the need Artway’s notification claims.8 though information in the record “[e]ven Review Issues Judicial 2. Fitness challenged injury statute sure work the alleged.” Babbitt v. United Farm Workers evaluating second factor for Union, Nat’l by the one never mentioned ripeness, this 2310, 60 L.Ed.2d 895 court, fit for is whether the issues are district Labs., Abbott

judicial review. cases illustrate the Two making at 1515-16. particularly need for factual information well. determination, again distin we must once Party Gilligan, In Socialist Labor 406 registration component of guish between 583, 1716, 92 S.Ct. 32 L.Ed.2d 317 hand, and the notifi Megan’s Law on the one (1972), unripe a the Court dismissed as chal- principal provisions on the other. The cation lenge grounds on First Amendment to a record is factu is whether the consideration required state law that candidates to swear court to make the ally adequate to enable the government attempt not to to overthrow the The more necessary legal determinations. by violence or force. The Court concluded presented purely is one of question that the extraordinarily ... “the record is law, additional facts will aid and the less that skimpy proved in the sort of or admitted inquiry, likely more court in its adjudicate facts that would enable us to this ripe, Compare issue is to be vice-versa. 587, at claim.” Id. at 92 S.Ct. 1719. Even Study Envtl. Duke Power Co. Carolina assuming plaintiffs standing chal- had Inc., 59, 81-82, 98 S.Ct. Group, 438 U.S. law, continued, lenge the the Court “their (1978) (“Al 2620, 2634-35, 57 L.Ed.2d given any particularity to case has not that no accident has though it is true nuclear require- effect on them of Ohio’s affidavit an occurrence would occurred and such 588, at 1719. ment.” Id. S.Ct. existing un much of the scientific eliminate Shultz, Bankers Association v. California subject, certainty surrounding would 1494, 416 U.S. 39 L.Ed.2d 812 S.Ct. not, view, significantly in advance our our (1974), similarly unripe a the Court declared presented ability legal deal with the issues challenge to bank record- First Amendment resolution.”) with Zemel v. nor aid us their keeping reporting requirements because 1271, 1282, Rusk, 1, 20, 381 U.S. of an factual record. Id. at insufficient (“[I]f L.Ed.2d 179 we are to avoid Court, “This in the absence of 1515. advisory adju rendering opinions, a of series competing in which a concrete fact situation constitutionality dication of the reach governmental interests can assoeiational prohib which the President [a statute under position weighed, simply a Cuba] ited travel to must await concrete compel disclo- determine whether an effort situation.”). fact or would not be sure of such records would ” particularly vigilant to are Courts barred .... Id. ripe that cases are when constitution ensure registration provi Megan’s Law’s questions

al are at issue. See Communist Artway register require simply that Party v. Subversive sions the United States Bd., prosecu provide to the local 81 and information Activities Control (1961) (hold tor, may provide in turn the information 6 L.Ed.2d 625 who agents. No only to local law enforcement ing unripe post challenge an ex facto organizations or other especially light private individuals Corrupt Practices Act Registration, unnecessary receive this information. rule to avoid constitutional decisions). therefore, opera- Indeed, in its involves few variables Artway seeking, the Eleventh Amendment Similarly, we rule on the claim of the fees cannot Woodbridge Township attorneys application Chief of Police of to the award of fees has no liability” immunity “potential Jenkins, bars his state § Missouri v. under 42 U.S.C. 1988. See seeking damages. § hypothetical Artway action suit. To the extent the has filed no such attorney's defense relates to the Police Chief's Power, in Duke primari- the issue is Because has not submitted to

tion. As procedures, these further factual information because the district ly one of law and admitting any court decided this ease without provide little assistance. Under these will evidence, appreciable circumstances, we have almost no fac- Art- we are confident grounding tual on which to judicial make assess- way’s registration challenge fit for applied Artway. ment about notification as review. pieces The record contains two of data: a Angels flier distributed the Guardian procedures, The notification on the warning Woodbridge residents to “BE- hand, poten involve dissemination of other Washington WARE” and the brief State tially devastating information to undeter report describing the effects of a different private mined numbers citizens. Because jurisdiction.10 law that While the tenor private part citizens are not these study the flier and the results of the mechanism, trained state law enforcement indeed, they worrisome snippets are but they we are less certain how will react. For compared developed to a record. Consistent instance, study the one in the record chroni Gilligan, Shultz principles with the basic cles number of incidents of harassment at alia, et complex impor- we cannot make and private the hands of citizens as a result of the tant determinations in a factual vacuum. law, Washington’s of State notification but Moreover, part constitutionality records no incidents on the of law en the of noti- the provisions Megan’s may forcement. We also lack concrete record fication of Law well Airway’s danger evidence about parsing what future turn on the most careful of the Su- be, preme ousness classification will on what rulings “punishment.” facts Court’s on Not determined, this classification will be and must we decide whether a multifaceted regulatory who will be notified.9 and novel11 scheme violates con- recognize lenged Megan’s serving 9. We the year some of critical factual Law. After an 18 information, especially pro- sodomy, the effects of the sentence [sic] He cannot bé made . posed registrant, subject communily notification on the will be diffi- the notification. Mr cases, cult to chronicle. In most Artway “yahoo, assume that jump up said I in the air and registrants slated for notification will seek to my click heels. I can move to now another enjoin happens. the notification before it area-in other words I can retreat-and consequences per- actual son, of notification on that no fliers wifi foflow me.” course, point. cannot be known at that (A247). by urging The flier concludes Wood- Therefore, emphasize we wish to hold- our bridge “keep eye residents to on Alexander ripe that this case not does not mean that (track movements)” Artway requests his and pre-notification challenges unripe. all will be anonymous "information about his where- speculative Where the fact of not notification is abouts.” Id. (because expressed the state has its intent to that, Washington study,reports The State of notify), enjoys flexibility the district court to col- subject the 176 sex offenders who were to notifi- appropriate may lect evidence so the issue 1993, cation in that state between 1990 and judicial may be fit for review. District courts see have suffered acts of harassment. These inci- evidence, array including fit to admit a broad following: egg dents include the rock and throw- (1) against but not limited to threats or actions arson, ing, picketing, posting warning threats of registrant triggered by the notice from channels throughout community, spray fliers the and Law, (2) Megan’s other than against similarly threats or actions "Die, painting slogans baby raper” like registrants, especially situated subject’s "Move or die” on the notification home notification, (3) undergoing those studies of (A178). personal property. In half of the 14 Megan’s effects of Law or similar notification the. cases, the harassment also extended to members however, suggest, laws. We do not that evidence family, people living of the offender's or to community mandatory reaction is before a the offender. challenge judicial notification will be fit for re- view. 11.Although forty regis states have sex offender statutes, twenty-nine tration of these laws have telling Woodbridge In addition to residents to passed Schopf, been 1990. See Simeon since "BEWARE,” suggests anti-regis- the flier "Megan's Community Law": and the Notification leafletting regular trant will be a result of notifi- Constitution, 117, J.L. & Soc. Probs. 29 Colum. cation: (1995). Moreover, minority of states notification, rapist permit community ATTENTION: way, whose Two time convicted Art- laws New id.; Doe, year Jersey’s far-reaching. a 49 old resident of the Avenel is the most See Woodbridge successfully section of chal- 142 N.J. at 41 662 A.2d 367. n. U.S. -, -, also discern safeguards, we must S.Cf. stitutional (1995) (rejecting L.Ed.2d 418 safeguards of these them- Hew parameters methodology examining, itt’ s regula state in Part As the discussion V selves. infra tions rather than the depriva nature reveals, law in this area needs clarifica- determining liberty tion in the existence of with- tion. not undertake this task suggesting scope interests and limits on the out factual tools. liberty trigger of state-created interests that Thus, Artway’s challenge to notifica- process safeguards). federal due fails provisions tion both ripeness prongs process test. The district Due is a concept flexible because, analyzing by application three-part court erred the hard- determined of a (1) review, denying distinguish balancing private it test: ship of did interests af notification; by proceeding; fected registration and it also the risk of between imposed by procedure error judicial prong created omitted the fitness review State; countervailing entirely. sub- interest Whether will ever be using procedures adopted. ject Megan’s require- Law’s notification 319, 335, Eldridge, Mathews v. speculation, ments remains matter of (1976). 47 L.Ed.2d 18 This the record lacks the factual information nec- applies proof. test to burdens of See Heller essary for this Court to decide noti- Doe, 322-24 n. III fication claims consistent its Article .with n. obligations. Artway argues that all three factors of the C. Due Process Claims rejection Mathews test counsel of the State’s procedure, places per- which burden Artway’s process due claims are Two prove suasion on the sex offender to that he unripe. Artway argues Megan’s that also dangerous in because; is not order to avoid notifica- process denies him due to Law Rather, contends, Artway notification, tion. the State avoid he bears the burden of persuasion should bear the burden of persuasion to demonstrate that he is not a that burden should be clear and convinc- danger. risk of He also claims that future (1) Artway evidence. submits that his Megan’s provide adequate does not no- Law private being in not a interest branded dan- tice of the State’s intention to initiate notifi- (2) gerous very great; sex offender is cation. The district court did not reach possesses greater fact the State re- these issues because it held the notification greater sources counsels that it should bear a provisions Megan’s Law unconstitutional Artway (especially share of the burden when Ex Post Facto we under the Clause. Since i.e., “prove negative,” on to is called already ripeness extensively, have discussed dangerous); not he is State’s analyze briefly. these claims more getting right, interest is in the determination 1. Burden Persuasion notifying Santosky not in all cases. v. Cf. Kramer, 745, 1388, 455 U.S. 102 S.Ct. 71 states The Fourteenth Amendment forbids (1982) (state L.Ed.2d 599 bears burden “life, liberty, denying property, from with persuasion by convincing clear and evidence process out due of law.” U.S. Const. amend. termination); Addington parental-rights purposes analysis, For of this we will XIV. Texas, 441 v. U.S. 60 Megan’s assume that notification under Law (1979) (same 323 for civil commit- L.Ed.2d liberty implicates a interest under state law proceedings). ment process pro to sufficient invoke federal due Artway judicial tections. Doe found such an interest. also asserts that deference 367; prosecutor’s findings pro- 142 at violates due N.J. 662 A.2d accord Hewitt Helms, 460, 466, by establishing constitutionally cess exces- against Virgin (holding presumption sive him. Cf. (3d Cir.1993) Parrilla, protects the Due Process state creat Islands v. 7 F.3d 1097 Clause liberty (striking creating liberty ed interests as as federal down statute rebuttable well — interests). Conner, Megan’s mandatory presumption). Under Sandin v. But cf. Artway argues, Law, judge prosecutor’s affirm the so that the State can never “shall (and persuaded by ... dispense corresponding unless with notice his determination evidence that it does preponderance right hearing). to a See United States (3d Cir.1987) (“[A] laws and the Raffoul, not conform to the Guidelines.” F.2d Doe, A2d 367. irreparable resulting N.J. likelihood of harm pre-deprivation hearing lack of a is Artway’s challenges Although on private any public interest which countervails forceful, his claims are not these issues are administration.”). interest streamlined ripe. process ever confront the That he will entirely speculative at this challenges he unripe But claim is for the notice point. process is available to contest This “punishment” same two reasons as his decisions, Artway be would First, persuasion challenges. notification burden of his (as subject opposed of notification proposed need notice about notification is merely registration) if he is classified as speculative. Artway will need notice risk) (moderate risk) (high a Tier or Tier 3 he is as a Tier 2 or Tier classified 3 risk. we know that will offender. While Second, the record in this case is insufficient prosecuted register, if he we do does question to make this determination. The whether, register, not know even if he does requirement Megan’s whether the notice process he will need to utilize the he ever process. Law satisfies the strictures of due challenges. right Mullane makes clear that the to notice absolute; rather, Artway right is not has a 2. Notice “reasonably calculated” notice. 339 process requires Due “notice rea 314, 70 S.Ct. at 657. And demon- Raffoul calculated, circumstances, sonably under all strates that dispense the State cannot apprise parties pendency interested possible irrep- notice when that notice opportunity of the action and afford them an arable harm could result. 826 F.2d at 224. objections.” present their Mullane v. Against legal backdrop, we must evalu- Trust, Hanover Bank Central & Megan’s “impossible practical ate Law’s as a 652, 657, 94 L.Ed. 865 standard, matter” but we have no factual (1950). Artway argues against matrix which to evaluate this stan- provide not adequate does notice of the Artway dard because has not submitted to proceedings. commencement of notification Megan’s Law.12 requires registered The Law notice to sex offenders 2 classified as Tier or Tier 3 before Summary Unripe D. Claims corresponding the notification occurs. How ever, Doe, Act, interpreted by dispens summary, In the we conclude that facto, “impossible practical Artway’s post es with ex jeopardy, notice when as a double bill attainder, matter.” 142 process challenges N.J. at 662 A.2d 367. of and due An provisions erroneous notification would inflict an Law’s notification not interest, irreparable deprivation liberty ripe.13 judgment of his therefore We vacate the Furthermore, yet necessarily present the state court has not inter- own his case-on 12. preted this standard. To the extent state court basis of its “overbreadth." See United States v. interpretation comport the standard Salerno, 739, 745, would make 2095, 2100, 481 U.S. 107 S.Ct. process, probably with due abstention would be (1987). Artway’s challenge 95 L.Ed.2d 697 obvi- appropriate ripe. even if the issue were ously rely does not on the First Amendment. To Pullman, Railroad v. Commission 312 U.S. challenge make a successful facial in a non-First (1941). 61 S.Ct. We 85 L.Ed. 971 assume context, litigant Amendment "must establish notice, Artway will be entitled to since his that no set of circumstances exists under which known, long whereabouts seem to be so as he the Act would be valid.” Id. has made pose danger. does not an immediate contention, it, proved no let alone that notifica- Megan's tion Law be under would unconstitu- Artway’s argument 13. contention oral that his example, tional under all circumstances. For his challenge as-applied is both facial and does noth- claims, "punishment” rely which all on some ripeness problem. to overcome his In the Amendment, retroactivity, notion of would fail the sex of- limited context First a facial challenge Megan's litigant argue fender committed his crime after Law allows a that a law is event, any challenge unconstitutional-in a set of circumstances was enacted. not In facial

1253 insofar as- it holds Tier The Constitution also the district court forbids states “pass any Bill unconstitutional, of Attainder.” U.S. Const. art. and Tier 3 notification I, § 10.14 Bill Under of Attainder process due direct to dismiss Clause, legislatures are forbidden to enact they extent concern notification. claims to the acts, “[l]egislative form, no matter what their apply either to named individuals or to REGISTRATION Y. easily group ascertainable members of a way punishment such a as to inflict on them the Ex Post A. “Punishment” Under judicial trial.” United without a States Facto, Attainder, Bill of Brown, 437, 448-49, 85 S.Ct. Jeopardy Double Clauses 1715, 14 (1965). L.Ed.2d 484 Finally, provides: the Constitution “[N]or Artway’s ripe turn We now to the merits any person subject shall be for the same registration provisions challenge: put jeopardy offense to be twice of life or Facto, Megan’s Law violate the Ex Post Bill limb.” Const. [T]he U.S. amend. V. Double Attainder, Jeopardy and Double Clauses. alia, Jeopardy inter prohibits, Clause “a sec by begin recapping the nature of those prosecution ond for the same offense after protections. provides The Constitution multiple punishments conviction ... and any pass post state shall ... ... ex “[n]o Halper, United States v. the same offense.” I, § art. 10. facto Law.” U.S. Const. Under 435, 440, 1892, 1897, Clause, government Ex Post Facto (1989). L.Ed.2d question The threshold retroactively apply not a law that “in clause, therefore, under each is whether the , greater punishment flicts a than the law registration provisions Megan’s im crime, annexed to the when committed.” pose “punishment.” registration If does not Bull, (3 Dall.) 386, 390, Colder U.S. impose punishment, inquiry respect our with (1798). registration L.Ed. 648 is at an issue end.15 does not-and cannot-excuse basic Article contrast, controversy requirements, Jeopardy III case or such as In the Double Clause bars the plaintiff actually aggrieved by imposition "punishment” sepa- that the of a second in a challenged proceeding though punishment statute. rate even was just authorized at the time of the crime but sought punishment. at the same time as the first importance Underlining of these clauses addition, judges seven of the Ninth Circuit Framers, eyes in the the Bill of Attainder recently pointed practical problem have out the apply and Ex Post Facto Clauses to both the broadly interpreting forfeitures as constitut- government original federal and the states ing “punishment” jeopardy purposes: for double I, U.S. terms § Constitution. See Const. art. illegal proceeds those who forfeit at the time of (“No post cl. 3 Bill of Attainder or ex facto criminally prosecuted. their arrest cannot be I, passed."); § law shall be U.S. Const. art. $405,089.23 Currency, See United States v. (“No any pass State shall ... Bill of Attainder 41, (9th Cir.1995) J., (Rymer, F.3d Hall, with whom Law_"). post ex [or] facto Kozinski, O'Scannlain, Trott, Wiggins, Nelson, J.J., join, dissenting from denial of re- fails, post 15. While even ex facto claim hearing). equitable practical Given these probably challenge. we that it think is his best factors, may courts be more reluctant to deem punishment Bills of attainder inflict “without a "punishment” jeopardy in a double measures Brown, 448-49, judicial trial.” 381 U.S. at challenge, especially they to the extent must course, Artway, S.Ct. at 1714 - 15. has had a judgment make difficult calls under the test de- trial, at which he was convicted of the crime scribed infra. triggering registration. complaint The real is not Indeed, equi- at least one Justice has noted the legislature judicial that the circumvented the has arguing jeopardy table factor in that double does process, changed but that it has the results of punishing not twice. See United States v. bar process. post This is the essence of an ex Hess, 379, 389-90, 317 U.S. 63 S.Ct. challenge. facto (1943) (Frankfurter; J., concurring) L.Ed. 443 (“The proceed- jeopardy probably stronger Double is a claim, chal- short of it is that where two such lenge ings merely carry than the bill of attainder but too out the remedies which Con- partic- gress prescribed wrong, post advance for a has its drawbacks. Ex facto laws are jeopardy ularly objectionable they deprive they put because their do not twice a man in for See, Florida, offense.”). course, object e.g., Justice Frankfurter’s of all notice. Miller v. same Of 429, 423, 2446, day. position cur- has not carried the But two Graham, (1987); recently expressed their view L.Ed.2d 351 Weaverv. rent Justices have Objective Halper: Pur- key 2. United States through several cases must sort We pose through Proportionality provisions to derive involving these various given the (or, appropriately perhaps more later, thirty years Almost United States “divine”) law, the test state of confused 1892, Halper, 490 U.S. end, develop a In the punishment. (1989), articulated an L.Ed.2d 487 the Court legislature’s multi-part that looks test test “objective” legislative intent test-the enacting challenged subjective purpose arguments of both central to the measure, “objective” purpose terms its fine, a Halper the State. held that sizeable history, and the mea- proportionality imposed proceeding in a after the defen- civil sure’s effects. fraud, dant’s conviction for Medicare violated an- Jeopardy Double Clause. The Court by determining alyzed the issue whether Subjective Purpose 1. De Veau v. Braisted: punishment, in- purposes fine served Braisted, 363 start with De Veau v. deterrence, cluding or in- retribution and purpose. “Simply satisfied a remedial stead (1960), an- in which the put, as a criminal sanction a civil as well (or actual) subjective legislative nounced a said, punishment,” the Court constitutes case, upheld, purpose test. In that the Court applied in the individu- “when the sanction post and ex facto against bill of attainder goals punishment.” al ease serves the Id. challenges, forbidding certain unions law recognized in other contexts that We have collecting employing former felons from punishment serves the twin aims of retri- effect, the law barred convicted dues. Furthermore, ret- bution and deterrence. working York and felons from on the New legitimate ribution and deterrence are Jersey New waterfront. The Court ex- objectives. nonpunitive governmental plained question in each case “[t]he premises, it a civil From these follows that brought unpleasant consequences where fairly solely sanction that cannot be said conduct, upon prior to bear individual purpose, serve a remedial but rather can punish legislative whether the aim was to explained serving as also either activity, past that individual for or whether purposes, pun- retributive or deterrent restriction comes about of the individual ishment, as we have come to understand regulation as a relevant incident to a of a that term. situation, qualifications of present such as the (citations Id. at 109 S.Ct. at 1902 profession.” Id. at 80 S.Ct. at 1155 omitted) quotations (emphasis internal add- added). (emphasis ed). overwhelming,” fine in that proof “The the Court The Court found continued, case-$130,000-bore sought “no rational “that New York not to rela ex-felons, punish legitimate purpose- felt tion” to the remedial but to devise what was $16,000 regulation compensating government for to be a scheme of its much-needed waterfront, in costs. Id. at 109 S.Ct. at 1902. and for the effectuation of Therefore, important the Court held that the Double scheme it became whether previously Jeopardy convicted of Clause barred the additional civil individuals had been case, felony.” early punishment emphasized Id. sanction after criminal “to the This Jersey, suggests legisla- New that actual extent that the second sanction not fair- remedial, purpose ly only as a only inquiry. tive is the But subse- be characterized as but 448-49, quent longer or retribution.” Id. at cases make clear that this is no deterrent at 1902.16 true. prohibits, multiple punishments, Jeopardy apply

that the not but Double Clause does not sion multiple punishments. only multiple prosecutions."). Department Rev Ranch, - U.S. -, ---, enue v. Kurth 1937, 1955-59, language Halper Seemingly inconsistent in Therefore, (Scalia, J., Thomas, J., perplexed joins, some courts. we ex- with whom dissent (" ing) margin parts put jeopardy' remotely plain we think all the fit ‘Tobe in does not in the how punished,’ by provi- together. Halper mean 'to be declared: so its terms this occupies Habper such a central measures can have one or Because more of these punishment inquiry, a number of having role the without purpose. that effects explanatory are in order. The observations mind, With this lexicon turn we to an first is a matter of semantics: clear under- explication calculus, Halper which “retributive,” standing of the terms “deter- evaluates the proportionality of ends to rent,” applying and “remedial” is critical to recapitulate, Halper means. To the test is Halper explain the test. We therefore how whether “a civil sanction that fairly cannot be using think is the the solely said purpose, to serve a remedial but terms; at least the reader will know how we only explained rather can serving be as also using vengeance them. Retribution is either retributive or purposes, deterrent is for its own sake. It does not seek to affect punishment.” Id. at 109 S.Ct. at 1902. any problem except future conduct or solve added). (emphasis question The threshold “justice.” realizing Deterrent measures purpose thus whether a remedial explain can negative repercussions as a serve threat of Only the sanction. purpose the remedial discourage engaging people from in certain measure, justify insufficient to the and one measures, behavior. Remedial on the other resort must also to retributive or deterrent hand, problem, seek to solve a for instance justifications, does the puni measure become by removing likely perpetrators the of future Only tive. “only then can the measure be (De corruption threatening instead of them explained serving as also either retributive or Veau), compensating government the purposes.” deterrent (Halper). costs incurred To illustrate with a course, out, statutory venerable point Of as the cases a mea- interpretation hypothetical, assume could all sure serve three functions. For instance, someone is sent to the putting jail store the snow for someone in for a sex soupmeat. trip explained can solely offense be serves retributive function of purpose food, the remedial hurting person, purposes obtaining deterrent convincing though trip through even engage him and others not to the cold could also serve purposes. behavior to avoid the adverse conse- retributive See id. at (“[O]ur quences, purpose 447 n. keep- the remedial S.Ct. at 1901 n. 7 cases (at away him acknowledged from others least have outside that for the defendant prison). complication carry Another is that even sting remedial sanctions premises, “punishment” From "only these it follows that a civil measure is if it can be ex- fairly solely plained serving sanction that cannot be said as also either retributive or deter- words, purpose, purposes.” serve a remedial but rather can rent In other if the measure explained serving proffered be as also either retributive is excessive in relation to its remedial purposes, punishment, purpose, “punishment.” or deterrent as we it will be The second says thing have come to understand the term. We there- sentence the same if one focuses on Jeopardy “fairly fore language. hold under the Double be characterized" A mea- already pun- may "fairly Clause a defendant who has been sure al,” not be characterized as remedi- prosecution may may fairly ished in a criminal "only not be but rather be characterized subjected "only to an additional civil sanction to the as a deterrent or retribution" if it can be fairly explained serving extent that the second sanction as also either retributive or remedial, purposes.” "solely” part be characterized as but aas deterrent And the first sentence, sentence, deterrent or retribution. of the first like the second (cita- paragraph 490 U.S. at 109 S.Ct. at 1901-02 can be reconciled with the rest of the omitted) (as quotations (emphasis by focusing "fairly tions and internal on the words be said" added). said”) opposed just pur- “be and “serve that (as effect). reading, “solely” pose” opposed anOn initial the first clause to have that "only” reading paragraph of the first sentence and the second sen- This is consistent (such point language opinion tence seem to in a different direction than with the other in “only discussion), explained serving analysis as also either its “rational relation" case, purposes” language holding: ques- retributive or deterrent on and its that the fine in analysis. punishment vastly which we base our tion was to the extent ex- parts excerpt government's purpose- But the various of this can be ceeded the remedial reconciled; they majority recouping prosecution-because indeed must since the its costs of Halper certainly thought only explained its declarations in such an excessive fine can be passage serving pur- this were consistent. As we illustrate also either deterrent or retributive subsequent soupmeat hypothetical, poses. with our para ‘civil’ are not of ‘criminal’ and qualifies as non- labels It therefore punishment.”)- pun importance_ The notion of the other mount Halper. On under punishment that, ... cuts across the division between additional ishment hand, now without assume 447-48, the criminal law.” Id. at the civil and agent sent without justification, the at 1901.19 trip the aspect of This additional clothes. by purpose explained the remedial be cannot objective test is a Halper The ends-means food; can obtaining this excursion limiting especially step road to down the pur- partly serving retributive explained as any “sting” could be effects, but still harsh “punishment” constitutes poses. It therefore post hoc remedi- permissible with a sufficient Halper test.17 under the example, need for “purpose.” al For the important ele Halper thus contributes trip through the supper explain could the objective analysis: it adds an to our ment temperature below even if the were snow legislative the actual inquiry supplement zero. “This constitution of De Veau. purpose test intrinsically personal. Its protection is al Objective Pur- States: 3. Austin United assessing only by can be identified violation History pose through imposed actual character of the sanctions the machinery the on the individual years Halper, in Austin v. Four after 1901; 447, 109 at see also state.” Id. at States, 113 S.Ct. United J., (Kennedy, 109 S.Ct. at 1904 id. at (1993), yet the Court added stress, concurring) (“Today’s holding, I would punishment ques- another dimension to the objective grounded constitutes an rule that is history. The held tion: a focus on Court nature of sanction and the facts of in the subject “punishment” forfeiture is civil case.”).18 particular Eighth to the Excessive Fines Clause government argued penalties had By acknowledging that “civil” Amendment. body may punishment, Halper departs that forfeiture of a mobile home and constitute signif- shop drug convicted of a practice placing talismanic after the owner was from the purpose com- legislative to the offense served the remedial icance on the labels affixed government for its costs in disputed provision searching pensating for the fre- investigating prosecuting these offenses. quently nondispositive unknowable and sub- appropriate analysis, jective legislative body: setting In out the “[T]he intent of the concurrence, determining safeguards Judge his Shadur intimates constitutional In accompany proceedings.” those Halper. [Op. must we have See overresolved 1901; pages believe, at task, see also disagree. Our we 1272]. infra accompanying (discussing key passage contrary in a purpose. rescribed the shows Id. at Austin Court (“We Halper. S.Ct. at 2810 nothing find in these provisions legislative or history their to con “a Halper said in civil sanction tradict understanding the historical of forfei fairly solely that cannot be said to serve a punishment.”). Thus, ture as even if a reme only purpose, but rather can be remedial purpose fully measure, dial explain could a explained serving as retributive also either thereby satisfying Halper, it pass will not purposes, punishment, as or deterrent if historically Austin muster it has been con we have come to understand the term.” punishment sidered and neither the nor text 610, 113 (quoting Halper, Id. at at 2806 S.Ct. legislative history pur contradicts this 1901-02). 448, 109 at at pose. again To soupmeat hypo draw on our a The Austin Court then took different thetical, sending someone out into the snow Halper applied tack than the it Court: punishment would doing be so was tradi Halper primarily examining history, test tionally regarded punitive as and the sender turn, then, proportionality. rather than “We plausible did not make his purposes remedial whether, Eighth to consider at the time the clear. This though would be the case even a ratified, Amendment forfeiture was un- was remedial purpose-fetching soupmeat- part punishment in as derstood at least fully explain could the action. Without a whether forfeiture in [the under statute counter-rationale, convincing something un question] today.” should be so understood punishment derstood as long simply for so history, Examining Id. it concluded that fairly solely “cannot be said to serve a reme traditionally regarded forfeiture has been as purpose, dial only but rather can be ex punishment. Looking language to the plained serving as also retributive or deter whole, legislative history of the statute as a purposes.” 610, 113 rent Id. at S.Ct. at 2806. the Court determined that these factors con- firmed that the forfeiture statute a served objective purpose analysis Austin also regardless punitive purpose, propor- represents analyzing a move toward the ef- tionality particular forfeiture to the provision ascertaining of a in whether it fect 617-23, government’s costs.20 Id. at “punishment.”21 Though speaks inflicts It 2810-12. therefore remanded for legislative “purpose,” likely the more forfeiture, by a determination whether the appropriate in inquiry concern a historical “excessive,” being Eighth violated the nature the measure itself. Even the Amendment. Id. legislative history inquiry text and of Austin Austin, going can be understood as

According to a more to the measure that has historically provision punitive purposes pun- served nature of the itself than rather legislative subjective history legislators. ishment unless the text or intent of the Thus, fines,” Halper explained, and Austin are somewhat sive' the Court "and a fine that Halper, examining proportionality purely purposes tension. serves remedial cannot be con- costs, question government’s any of the fine in to the sidered ‘excessive’in event.” Id. This so, "punishment” collapses Eighth held that a but it fine was to the Austin's Amend- analysis Halper's jeopardy disproportionate govern- was ment extent it to the into double in- 448-49, quiry: “punishment” is not excessive if it is not ment’s costs. 490 U.S. at 109 S.Ct. at Austin, “punishment." relying primarily history 1901-02. on (rather looking statute as whole than presaged 21. This transition was in United States particular question), forfeiture in holds that Firearms, v. One Assortment “punishment” regardless pro- forfeiture is of its In that portionality government’s costs. 509 U.S. case, jeopardy held that double did not at 619-23 & n. 113 S.Ct. at 2811-12 & n. 14. proceeding seeking bar a civil of fire- forfeiture cursoiy attempt distinguish Halper After a acquitted separate arms after the owner was footnote, explains Austin proceeding. Though it makes' “little criminal the Court still practical placed weight legislative pur- difference whether Excessive Fines decisive actual on applies pose, inquired statutory Clause to all rele- [the forfeitures under it also “whether the punitive purpose statute] vant or to those that cannot be scheme was so effect purely negate characterized as remedial." Id. "The that intention.” Id. at prohibits' only added). imposition (emphasis Clause of 'exces- at 1105 1258 23, Austin, 23, 1861, 520, 1901 n. 60 590 n. of we concluding our discussion (1979) (Stevens, J., whether, dissenting) as some courts have L.Ed.2d 447 question

must (The probably “punish that Court “has relied assumed, case establishes that pro analysis than on upon of one constitutional more often historical for purposes ment” necessarily “punishment” objective for an factors ... any [to] of the other tection is $4.05,089.23 government v. U.S. sanc- States whether some determin[e] See United other. Cir.1994) (9th cases). 1210, (citing F.3d 1219 Currency, punitive.”) 33 tion is reading (“We only fair of that the believe ‘punishment’ it the resolves Austin is v. Kurth Ranch: Department Revenue for respect to forfeiture cases issue with Purpose and Deterrence Objective as Jeopardy Double Clause of the purposes Austin, deciding the Court year after One Clause.”), Excessive Fines well as Department Rev added another wrinkle rehearing, F.3d 41 denial 56 on amended — Ranch, -, 114 Kurth U.S. enue v. — U.S.-, (1995), 116 granted, S.Ct. cert. 1937, (1994), announc 128 L.Ed.2d 767 S.Ct. Court, This 133 L.Ed.2d 709 purpose” “no deterrent rule of that the Halper and Aus noting the tension between apply in all Halper and Austin does not tin, rejected reading the Ninth Circuit’s Ranch held that Mon situations. Kurth resolving under as all forfeitures of Austin Drug Dou Dangerous tana’s Tax violated the punishment pur presumptively § 881 as law, Jeopardy Clause. The Montana ble Jeopardy See poses the Double Clause. illegal drugs equipment and which taxed $184,505.01in U.S. Curren States v. United up percent, “punish to 400 constituted rates Cir.1995) (3d (rejecting cy, 72 F.3d 1160 “a concoction of anoma ment” because was holding reasoning of United States v. lies, respects far removed in crucial too (9th $405,089.23 Currency, 33 F.3d 1210 U.S. escape charac a standard tax assessment Cir.1994)).22 punishment purpose as for the terization Nevertheless, that the historical we believe at -, Jeopardy analysis.” Id. Double Austin, opposed its methodology of as at 1948. Because Montana levied this S.Ct. holding, applica- language broad must be separate proceeding, tax after the defen his- punishment ble to other determinations: sentenced, punish dants were tried and analysis staple constitutional torical is a Jeopardy ment violated the Double Clause. guarantees interpretation, including those Id. dealing “punishment.” Nixon Cf. Services, expanded Kurth Ranch further on the his-

Administrator General 2777, 2806, inquiry begun in It L.Ed.2d 867 torical Austin. distin- any history guished Halper-that the rule of de- (examining to determine presidential purpose punishment- terrent makes a law whether restrictions on access ground that “are papers “punishment” for Bill of on the fines forfeitures constituted Clause); readily Wolfish, 441 characterized as sanctions” whereas Attainder Bell v. $405,089.23, again question" opinion rejected . the "relevant later in the 22. While this Court has reasoning agree entirely do not with the being Halper analysis: as “Under United the denial of re- Ninth Circuit dissenters from hearing. Halper, States opinion The dissent criticizes (1989), question merging inquiry "the for excessive fines part punish, is whether the serves in forfeiture partly forfeited is cases-whether the amount possibility and one need not exclude the cases, punishment-into jeopardy double purposes forfeiture serves other to reach where is the amount forfeited the issue whether S.Ct. at conclusion.” 509 U.S. 618 n. entirely punishment." at 43. is 56 F.3d question n. 12. The is not whether a historical This is incorrect. Austin adds "entirely "partly punishment” measure (and analysis statute as a whole examines the punishment"; question "pun- is whether it is specific question), rather than the measure in but part to And a measure that serves in ishment." underlying change it does not nature (as merely having nega- punish opposed some fact, Halper Austin follows its state- calculus. In effect) "punishment.” Halper calcu- tive ment that it must determine whether this forfei- admittedly confusing, but we lus is somewhat part punish” by quoting ture "in serves explicate done our best to it above. have citing Halper that case. If standard from accompanying explains supra pages notes. enough, 1254-56 this were not the Court clear salutary23 activity completely “vanish the taxed typically have served when taxes forbidden, at -, Id. legitimate raising revenue-raising revenue. purpose Thus, explained, purpose might support at 1946. the Court such a tax could purpose equally by increasing a be well high tax rate and even deterrent served the fine Id. automatically puni imposed upon not render a tax conviction.” would The Court at -, Id. illegal drugs 114 S.Ct. at 1947. held that because a tax on tive. did operate manner,' not the usual the histori par- then examined whether the The Court cally non-punitive purposes of taxes could operated tax at issue the usual ticular not insulate this tax from being considered of most It differentiated manner taxes. at -, Id. “punishment.” 114 S.Ct. at 1948. raising among pure with a revenue taxes of the Kurth Ranch purpose, imposed significance taxes both to The main mixed-motive activity that, a and to raise reve- limitation is deter disfavored at least for measures that nue, illegal functions, imposed upon historically salutary activities. have and taxes served purpose raising “punish- taxes are not even some deterrent Pure revenue will not render said, ment,” they “punishment”: by are im- a begin the Court measure “We not- because despite rate of taxation nor negative high effect on the a posed their neither purpose automatically Id. Even mixed-motive obvious deterrent activity. tax- taxed es, sales, imposed cigarette Id. at punishment.” such as those on marks this tax a form of -, added). govern- “punishment” (emphasis are because the S.Ct. at 1946 not cases, activity ment wishes the to continue to the these courts must examine whether benefits-including particular operates tax rev- extent that its measure at issue in a However, enues-outweigh harms. “usual” manner its consistent with its historical- salutary justifications ly salutary purposes.24 found that these or mixed Court “salutary” reading both We 23. We use the term include think that Stoller’s limited of Hal- goals. per may misunderstanding remedial and otherwise beneficial stem a from that, Halper calculus. Stoller states unlike mone- Thus, disagree the First Circuit's un sanctions, tary many non-monetary sanctions derstanding Halper of Kurth in situa Ranch fairly serving only "cannot be characterized as involving tions neither fines nor taxes. See Unit punitive purposes.” (emphasis 78 F.3d.at Stoller, (1st Cir.1996). ed States v. 78 F.3d 710 added). suggests, incorrectly, It thus that this is argues supplies gen Stoller that Kurth Ranch Halper requires. what As footnote 16 of our "totality dubs the eral rule-which Stoller detail, opinion describes in a measure constitutes Halper test-while "ex circumstances" is an "punishment” Halper may "fairly under if it be ception” "monetary" penalties. a characterized as deterrent or.retribution.” unpersuaded by We Stoller's limitation at 109 S.Ct. at 1902. The accurate “monetary" Halper. Halper penal Cabining placement "only”-modifying “charac- supported by language ties is not the broad “punitive”-changes terized” instead of Reading nothing Halper strictly that case. so meaning phrase entirely, making of that the test it, limiting narrowly we are loath to read it so much less strict than the First Circuit reads it. Supreme without instruction from the Court. disagree We also with Stoller's rationale that gave such Stoller claims Halper "monetary" penalties limited to be- an instruction in Kurth Ranch. But we read “fines, forfeitures, cause and other mone- nothing indicating sup in Kurth Ranch that it tary penalties quantifiable ... are in actual or plies general Halper provides rule and approximate monetary terms.” 78 F.3d at 717. Ranch, exception. majority opinion in Kurth judging proportionality While ends therein, quoting Rehnquist’s Chief Justice dissent slightly means more difficult in a non- explains pur that because "tax statutes serve a monetary setting, compare qualitative courts pose quite penalties, different civil ... Hal- qualitative means to ends all the time. Courts per’s determining method.of whether the exac regularly analysis equal pro- use ends-means punitive 'simply tion was remedial or does process tection and due cases to evaluate diffi- in the case of a tax statute.'" -U.S. at work -, cult-to-quantify rights (liberty, speech, free free so, why exercise) S.Ct. at 1948. If then not read like the one at issue here. The feasibili- "exception” Kurth Ranch as an for tax cases? ty applying Halper generally is demonstrated general What makes Kurth Ranch the rule and soupmeat hypothetical, our as well as the Halper exception involving in cases many neither cases that have used the calculus to deter- revoking constitutionality fines nor taxes? believe that the better mine the drivers' See, evaluating driving. e.g., Maryland course when a measure that is neither licenses for drunk Jones, (1995), penalty” synthesize nor a is to both “civil "tax” 340 Md. 666 A.2d 128 cert. - denied, -, generalize Halper and Kurth Ranch and them language support. the extent their will L.Ed.2d 213 provision this new view board invoked reemphasizes that also Ranch Kurth suitability hearing for three delay his next effect on the defendant negative some least “punish years. measure into Id. not convert does however, ], that whether note[ ment.” “We far, the other cases discussed so As with punishment is not deter constitutes sanction question framed the as whether the Court perspective, as defendant’s from the mined ‘punishment’ at “increased the the measure carry ‘sting of sanctions remedial even at -, respondent’s crime.” Id. tached to ” - n. 14, 114 at Id.

punishment.’ Rejecting the defendant’s 115 S.Ct. at 1601. omitted). (citations 1945n. 14 change “punish claim that constituted ment,” distinguished holding Court cases the v. Department Corrections 5. of California changes effectively increasing legislative Morales: Effects jail the Ex Post Facto Clause. terms violated recently, Department Most California cases, the the measures those Id. Unlike — Morales, -, 115 v. U.S. Corrections said, only the statute at issue “creates Court (1995), 1597, 131L.Ed.2d 588 contribut S.Ct. speculative and attenuated risk of the most “punish to the two additional elements ed punishment at increasing the measure of the focus analysis: it further shifts ment” at -, crimes.” Id. tached to the covered effect, and it purpose from a law’s to its parole 115 S.Ct. at 1605. The likelihood appropriate “punish the establishes for those covered-double murderers- context-depen analysis ment” is flexible at -, “quite remote.” Id. 115 S.Ct. at is Morales, rejected an In the ex dent. Moreover, “carefully the tailored” au 1603. challenge statute post facto to a California thority delay it to hear of the board directs to prisoner’s entitlement that decreased hearings ings when it concludes that the hearings. the law in parole eligibility Under prisoner. would be of no avail to the Id. at crime, he effect at the time of the defendant’s -, 115 S.Ct. suitability hearings parole was entitled to parole Morales makes clear that a law can consti every year after his initial determina -, “punishment” at 1600. The tute unconstitutional because tion. Id. at 115 S.Ct. subsequently of its effects. The Court leads off its discus legislature amended California legisla “[t]he board to defer sion with the declaration that the law to allow the review pris change in subsequent suitability hearings if tion at issue here effects no the respondent’s Id. at oner of “more than one definition crime.” has been convicted -, life,” taking opinion of a at 1601. The then offense which involves the analysis examining spends it not reason the bulk of its the board “finds that legislative change expect parole granted.” effect of the on Morales. able to would be at -, (citing Ann. See id. 115 S.Ct. at 1601-04. Id. Cal.Penal Code 3041.5(b)(2) 1982)). so, (West finding doing § that a effec After concedes measure tively parole, extending imprisonment the re- a sentence of the defendant unsuitable for Furthermore, factually strict lim sion in the similar cases of De Veau and we think that Stoller's York, 189, 573, Halper Hawker v. New 170 U.S. 18 S.Ct. itation of is inconsistent with Stoller's Indeed, arguing approach. 42 L.Ed. 1002 own after for Hal case, Nevertheless, approach per inapplicability our 's to own Stoller itself differs from its proceeds application Halper apply Halper. 78 F.3d at First Circuit's in our to this incorporating ("Halper expressly recognizes Given our broader test that civil sanctions situation. DeVeau, Austin, Ranch, Morales, we precisely Kurth need not be calibrated in order sur Halper scrutiny Jeopardy think that reliance on vive Clause do not exclusive under the Double "dys justice.’ proper. functional," Halper inapplicable, long they 'rough But is not as as work remedial fully particularly in non-mone principle strict think this transferable context.”) (citation omitted). "totality tary settings such as this. And Stoller's debarment test, purports unnecessary Halper of the circumstances” which it Stoller’s attack on is also Ranch, approach, Kurth is neither described as to its result. Even our which extract from under sufficiently part opinion determinate Halper analyze proportionality such nor uses (like test, Kennedy helpful larger the similar v. Mendo debarment order chal- to be za-Martinez, limited 554, 144, lenged "punish- 83 S.Ct. in Stoller would not constitute (1963), rejected by pressed test ment.” We be hard to conclude L.Ed.2d would Jeopardy analysis). Supreme Court's deci- Court for Double otherwise in view óf the regard punishment, presumably sharp will be so that it can constitutes be consid- legislature’s motivation. See id. punishment regardless less ered legisla- at -, (citing at 1601 and distin 115 S.Ct. subjective thoughts. tors’ example, For guishing Lindsey Washington, 301 U.S. legislature, heart(s), purest with the could (1937); 81 L.Ed. 1182 Mil 57 S.Ct. prison extend the previously sentences of all Florida, ler convicted sex offenders for the sole reason of (1987); Graham,, Weaver v. protecting potential future victims. It was 67 L.Ed.2d 17 simply not dangerous they understood how (1981)). impact that the Morales concludes released, legislators would be when could prisoner great enough on the was not to truthfully explain, society would be safe finding post warrant an ex facto violation. only if kept sex offenders were behind bars. held,” said, long “We have the Court “that This purpose fully remedial would thus ex- question legislative adjustments of what plain incarceration; the continued in the oth- be held to will sufficient moment Halper, er terms of imprison- continued transgress prohibition constitutional “rationally ment would be related” to the at -, degree.” matter must be a Id. goal protecting vulnerable citizens. But (internal omitted) quotations at 1603 uphold no Justice ever voted to a statute added).25 (emphasis retroactively that increased the im- term of highlights flexibility Morales also of prisonment past for a offense. See Miller v. punishment inquiry. It makes no refer- Florida, 423, 2446, 482 107 U.S. S.Ct. 96 Veau, Austin, Halper, ence or citation to De (1987); Graham, L.Ed.2d 351 Weaver 450 or Kurth Ranch at all. This could be read as 24, 960, 101 U.S. S.Ct. 67 L.Ed.2d 17 rejection post a of those standards in the ex context, facto but we think that the better Kennedy 6. v. Mendoza-Martinez: The In- reading of this in mere omission Morales is quiry Proceedings the Nature for appropriate “punishment” analysis that Finally, synthesis, attempting before a depends on the context. The Court said as briefly employed by must discuss the test previously much: “[W]e have declined to ar- district court-which was based on Kenne single identifying ticulate a ‘formula’ for Mendoza-Martinez, dy 144, 372 83 legislative changes those that have a suffi- (1963)-and 554, S.Ct. ex cient effect on punish- substantive crimes or why plain approach inappropriate. we find its prohi- ments to fall within the constitutional case, In that divesting the Court held that bition, and we have no occasion to do so citizenship American for draft evasion or mil (citation omitted). here.” Id. Morales did itary “punishment” requiring desertion was not need to progeny discuss Austin and its procedural protections of the Fifth and impris- because the facts Morales involved Fifth “[T]he Sixth Amendments: and Sixth onment; the Court needed to discuss punishment Amendments mandate this distinguish on-point the most cases of imposed prior cannot be without a criminal Weaver, Miller, Lindsey, supra. And in incidents, including trial and all its indict doing negative so it looked at effects on ment, notice, confrontation, trial, jury assis degree.” Morales as “a matter of Id. counsel, compulsory process tance of for effects, This examination of like the Austin obtaining witnesses.” Id. at at S.Ct. inquiry history, necessary into is to limit added). (emphasis what would otherwise be the untenable re forth a Mendoza-Martinez set multi-factor subjective of the De purpose sults Veau in analysis to determine whether a measure quiry Halper and the means-end calculus. “punishment” triggering constitutes criminal “sting” a While even substantial will not ren process guarantees: “punishment,” der a Halper, measure see Kurth U.S. at 447 n. Ranch, — U.S. at - S.Ct. 1901 n. n. mative whether the sanction involves an affir disability restraint, ^[2] whether “sting” historically regarded puni- 1945 n. at some level the it has been evaluating degree” page 25. We discuss the benchmarks for ‘matter of infra tive, whether tion will punishment —retribution tive is connected a native ^[5] finding of appears excessive already whether purpose to which ^[3] purpose. promote the traditional scienter, the burden crime, assignable it comes into ^[6] in relation to ^[4] it whether to which whether its may rationally be it, play only on ^[7] deterrence, an alterna- the alter- it whether aims applies opera- Mendoza-Martinez point. The this terminations is “so protections-is test (ACLU) “punishment.” The ACLU “test”-which Amicus American Civil for mere is because punitive” as to invoke makes a clever Supreme of whether a civil “punishment.” analyzes whether harder to the Mendoza-Martinez does not control Court argument on this Liberties Union prove than the contends has said Logically, criminal trial measure is something for de- if a satisfy higher punitive” to measure is “so 168-69, The dis- 83 S.Ct. at 567-68. Id. at threshold, ar- amicus Mendoza-Martinez holding applied this test trict court pur- “punishment” also be gues, it should uncon- Megan’s Law was under notification Artway brings, even challenges poses of the stitutional. is not true. the reverse However, has made Court Nevertheless, Jersey the New Su- like test is not the Mendoza-Martinez clear that Doe, preme 142 N.J. at case. See controlling for the issues it wise to heed the Su- A2d we think 6, 113 Austin, n. at 2806 509 U.S. at 610 preme advice: Mendoza-Martinez Court’s Although Mendoza-Martinez used n. 6. inapplicable outside the context of determin- explains that the “punishment,” Austin word sufficiently crim- proceeding whether to determine properly factors are used seven procedural criminal inal in nature to warrant proceeding punitive that the is “so whether Fifth and Amend- protections of the Sixth reasonably must be considered proceeding Austin, 6,n. 509 U.S. at 610 ments.26 See purposes of Amendment criminal” for Sixth at 2806 n. 6. Even when the Court 113 S.Ct. addressing protections. Id. “In factors, trial has recited the Mendoza-Martinez question punishment itself, is be separate whether it has including in Mendoza-Martinez Mendoza-Martinez, employed the ing imposed, the Court has not played them down. See 167, (declining at articulated in Mendoza-Martinez 372 U.S. at 83 S.Ct. 566-67 tests factors). consistently apply It has its own Id. Ward.” Ward, therefore, inapplicable apply. as Although Jersey Supreme rec- must is the New 26. analysis itself. And ognized does not to this in Doe that Mendoza-Martinez Mendoza-Martinez analysis, disagree Flemming purpose” apply "actual to this we was decided 144, Braisted, approach to take this court's insofar as it failed De 80 S.Ct. of Veau era (in 1146, (1960) (decided recognition logical to its conclusion addition the same 4 L.Ed.2d 1109 neglect history under Austin and its total year). Halper its "the has since made clear that effects). disregard notes that paramount The Doe Court labels 'criminal' and 'civil' are not of apply 447, does not to the relevant importance.” S.Ct. at Mendoza-Martinez 490 U.S. at 109 analysis, rely "punishment" Austin, Ranch, continues to on but and Morales have Kurth Mendoza-Martinez, that, think, other authorities like sensibly changed analysis, further pertain question proceeding of whether a objective, increasing ef- to include an focus on pro- sufficiently in nature to warrant is criminal aspects question. the measure in fect-oriented Amendments. tection under the Fifth and Sixth inapplicability of also The Mendoza-Martinez concerning Jersey’s argument Unit- refutes New example, although the Doe Court nominal For Salerno, U.S. 107 S.Ct. ed States v. 2095, 481 tests, ly applies Halper it loads its and Austin Jersey argues New 95 L.Ed.2d analysis "[w]here with the assertion that the stat preventive de- that Salerno that even establishes remedial, legislative the burden on ed intent is Facto Clause. tention does not offend the Ex Post claiming punitive there is a hidden intent those detention, preventive before Doe, Salerno held that proof' of that intent.” 142 N.J. the ‘clearest trial, pre-trial "punishment” violation Ward, was not (citing States v. at 662 A.2d 367 United at 107 S.Ct. 242, 248-49, 2636, 2641-42, the Due Process Clause. Id. U.S. Nestor, reached this conclusion (1980); at 2105-06. The Court Flemming v. through application 603, 617, 1367, 1376, of the Mendoza-Martinez 4 L.Ed.2d U.S. Salerno, Mendoza-Martinez, (1960)). Ward, 107 S.Ct. at 2101-02. test. Id. therefore, like in light that we on the test proceed sheds question little volves the different whether post apply an ex facto in the context of effectively procedural must criminal so that the inquiry. protections Amendments of the Fifth and Sixth factors, 610-11, really grab-bag so, insisted that these 113 S.Ct. at 2806. If tests, many legislative individual are neither control the text or history does not ling dispositive. nor See United States demonstrate that this measure puni is not Ward, tive, “punishment.” must be considered (1980) (“[T]his Third, legislature 65 L.Ed.2d list of if the did not intend a law considerations, certainly while neither exh to be retributive but did intend it to serve dispositive, proved helpful austive nor some salutary mixture of deterrent pur questions (1) in our own consideration of similar poses, we must determine whether histor provides guidance.”) (emphasis ically some purpose the deterrent of such a law is a added). Finally, we think necessary complement that a seven factor salutary opera its (2) balancing test —with factors of unknown tion and whether the measure under con

weight “may point differing often operates manner, sideration in its “usual” directions,” Mendoza-Martinez, 372 U.S. at historically consistent with pur its mixed — poses. Ranch, 83 S.Ct. at 568—is too indeterminate See Kurth U.S. at - - unwieldy provide -, much assistance 114 S.Ct. at par 1946-48. Unless the us here.27 tially deterrent measure meets both of these criteria, “punishment.” it is If the measure Synthesizing Jurisprudence:

B. meets both of these criteria and the deter Test(s) purpose rent does not overwhelm the salu tary purpose, permissible it is under Kurth eases, Synthesizing these we de Ranch. following analytical rive framework for pass this case. A measure must a three- Finally, if purpose tests are sat analysis-(1) prong purpose, actual ob isfied, we must then turn to jective purpose, and effect-to consti- effects negative measure.. If repercussions- non-punishment. tute must look at actu- regardless they justified-are of how purpose legislative al to see “whether the aim great enough, the measure must be consid- Veau, punish.” was to See De 363 U.S. at — punishment. Morales, ered U.S. at 160, 80 legislature S.Ct. at 1155. If the -, inquiry, 115 S.Ct. at 1603. guided This intended “punishment,” Law to be cases, the facts of decided necessarily i.e., retribution pur- was one of its actual degree.” one “of See id. poses, then it must fail constitutional scruti- If, ny. hand, on the other “the restriction of attempted We have thus to harmonize a the individual comes about as a relevant inci- body of doctrine that has caused much dis regulation,” dent ato the pass measure will agreement in the federal and state courts. prong. this first Id. however, realize, synthesis by that our is

If legislature’s the purpose perfect. Only actual no means the appear does not punish, to be to pieces we look next knows belong. where all the The “objective” will, purpose. prong, its hope, provide This in Court guidance more turn, subparts. First, $405, three can the law with its decision in United States v. explained solely by (9th purpose? a remedial Currency, 089.23 U.S. 33 F.3d 1210 Cir. Halper, 1994), See U.S. 109 S.Ct. at rehearing, amended on denial of — not, Second, “punishment.” (1995), 1901-02. If U.S.-, is granted, F.3d cert. if purpose fully even some remedial (1996), can ex measure, plain analysis the does a historical some other case the near future. With traditionally mind, show the measure has qualification been this we turn to the regarded Austin, punishment? application Megan’s of this test to Law. apply Kennedy

27. Even we imposed only proof if were to whether the after burden factors, they support (criminal do not intent)-militates Mendoza-Martinez against of scienter registration pun- determination that constitutes finding “punishment” registration of be Only points punish- ishment. one factor toward Megan’s applies judged cause Law also to those applies ment: whether the burden to conduct guilty by insanity. not reason of See N.J.S.A. already point criminal. The other six 2C:7-2a. (3)- non-punishment. toward Even factor suggests that passage This 2C:7-1. Registration Provisions N.J.S.A The C. pun- purpose was not legislature’s actual Megan’s Law Evaluated of “identify[ing] and speaks of It ishment. provisions of Me registration The safety and alert[ing] public” to enhance They re relatively simple. gan’s Law are resolving inci- promptly “preventing of compulsive” sex quire “repetitive Protecting public preventing dents.” completed a sentence who have fenders purposes De types Veau crimes are register with local law designated crimes punitive. 363 “regulatory” and not found Artway meets these Because enforcement. 1154-55. 80 S.Ct. at if he re register must requirements, he history, legislative a state- other The Art- Jersey. registering, turns to New introduced in the New in the bill as ment including de way provide must information Senate, Jersey buttresses the conclusion genetic appearance, his of his scriptions punish. not to legislature’s intent was place markers, and work and his residence presence of a sex danger posed “The officer of the law enforcement to the chief acts has committed violent offender who chooses to reside. municipality in which he system of notifi- against requires children his residence periodically confirm He must public safety and wel- protect the cation to if he moves. notify enforcement law community.” Bill No. fare of the Senate provisions of Me notification Unlike the 1994). (introduced sec- September The require notice gan’s Law-which would “notification,” literally speaks of but tion crime, description, where- his his purpose in notification legislature’s actual and, abouts, critically, assess- the State’s remedial, imagine it is hard to that its was dangerousness to mem- ment of his future step predicate and less harsh purpose in the Artway’s community-registration bers registration punitive. was only to law en- provides this information agencies. information is forcement enactment, The circumstances open public inspection. generated sparse legislative his- which such Megan’s tory, give pause. us Law was Purpose 1. Actual Assembly floor as an extraordi- rushed to the prong measure, our asks whether nary skipping The first test committee consider- pun- just legislature’s purpose entirely. was to It actual debate these ation and Veau, De 363 U.S. at strong passions ish. See to which men “sudden designed indication of actual exposed” at 1154-55. The that the Framers regarding ver- legislative the enacted Bill Attainder intent Ex Post Facto and Clauses following Peck, is the state- against. sion of Fletcher v. protect (6 Cranch) purpose legislation itself: ment of in the L.Ed. 162 Nevertheless, the evidence we do have Legislature finds and declares: 1. The points non-puni- to a legislative actual intent by posed sex danger a. The of recidivism purpose. tive commit other offenders and offenders who children, against and the predatory acts Objective Purpose by prey on dangers posed persons who illness, require others as a result of mental objective purpose prong asks three The permit system registration First, of that will a questions. we must discern related identify officials to and solely by law enforcement explained can the law whether necessary public when for the alert Halper, 490 U.S. at purpose. remedial See public safety. 448, Registration 1901-02. is a 109 S.Ct. at long-standing regulatory tech- and system registration A of sex offend- common b. of See, e.g., purpose. preda- nique with a remedial commit other ers and offenders who Zimmerman, 63, 49 v. 278 U.S. tory provide law New York against acts children will (1928) 61, (registration of L.Ed. 184 information S.Ct. 73 enforcement additional with membership corporations and associations promptly resolv- preventing critical to Kahriger, permissible); States ing involving United incidents sexual abuse 510, 22, 97 L.Ed. 754 missing persons. per- gamblers (cataloguing “punishments prin- that consist professional (registration missible), by grounds on other overruled cipally ignominy” in their as set forth in States, 390 U.S. United Marchetti Commentaries); Blackstone’s Crime and (1968); United 19 L.Ed.2d 889 S.Ct. (ex- History Punishment in American Harriss, States v. plaining humiliating punishments were (1954) (registration lobbyists 98 L.Ed. deterrents). historically to serve as intended further One need look no permissible).28 nonpuni- Selective Service to find a than the particular, Artway argues system registration for individuals. tive Law is to that analogous badge most famous States, v. United Gillette punishment: the Scarlet Letter. “There (sustaining outrage against ... can be no our common system against claim that it service selective nature,-whatever delinquencies be the exercise). free violated individual,-no outrage flagrant more Here, help- solely purpose remedial culprit than to forbid the to hide his face for agencies tabs on keep enforcement law shame; punish- as it the essence of was fully explains requiring cer- offenders these Hawthorne, ment to do.” Nathaniel Registration register. offenders to tain sex (Random 1950) Scarlet Letter 63-64 House crimes prevent officers to future allow Letter, Artway the Scarlet Like con- intervening dangerous Like situations. tends, Megan’s public results ostra- to fetch agent who must endure the snow opprobrium: subject cism and it would him registrant may some soupmeat, the face impair potential vigilantism, opportuni- his having register and unpleasantness from work, damage ties to his abilities to remedial update registration. his But develop relationships. and maintain stable knowing of sex purpose the whereabouts pro- fully explains registration submission, offenders pur- In his its “remedial” fully just the need for ex- vision dinner public pose-to protect the from him- trip night. And the plains the out into the him as an seeks brand outcast. Such registration enforce- and law means chosen— shunning by community one’s is the essence not ment notification excessive —is punishment, of historical contends. therefore, any way. Registration, is certain- force, “reasonably goal: ly legitimate Artway’s related” to a argument considerable vigilant stay law enforcement allowing issue not but the notification before us. against possible re-abuse. registration, provi- and that We evaluate Second, sion resemblance to the reg bears little Scarlet history, must consider punishment simply requires Artway Registration istration does resemble Letter. Artway spends analysis. a historical through provide package information to local chronicling his brief the historical much of enforcement; registration in- law does not understanding punish public shame as public public Without this volve notification. “Early con punishment forms of ment. element, analogy fails. The Scarlet strong humil gross public elements of tained punishments Letter and other of “shame” _ Physical punishments ... were iation rely disgrace on “ignominy” of an publicly in fashion out ceremonial carried community. individual his The act of before victim was] intended that [because government registering a discrete enti- humiliated, figured degradation should be ty, authorized to release that which is not pun largely contemporary in all theories of (ex- community large information to Brilliant, Note, A Mod ishment.” Jon The cept emergencies), compared cannot be Analysis A Day em Scarlet Letter: Critical public humiliation. The officers who consti- Conditions, Probation 1989 Duke Modern enforcement, they if tute local law even are (internal 1357, quotations 1360-61 omit L.J. area, only a from would constitute Wilson, 417, ted); also Ex Parte 114 U.S. see 428, portion community. of that And S.Ct. 29 L.Ed. 89 de minimis 5 225, makes, apparently California, Artway v. 78 S.Ct. because her facts 28. Lambert 355 U.S. 240, (1958), registra-, L.Ed.2d 2 228 invalidated predicates support would the other of those not statute, that it but for the different reason tion challenges (e.g., she committed her offense after gave registrant notice. The case did no that act). that the enactment of bring punishment-oriented claims that 1266 history ready to criminal infor- access their Effects part jobs, rath- integral of their mation is an prong final whether the ef examines extraordinary likely trig- event er than an “sting”-of a measure is so fects-or ger opprobrium. degree” “as a matter of that it consti harsh — Morales, “punishment.” tutes U.S. States, on v. United Artway relies Weems at -, 115 S.Ct. at 1603. The caselaw does 544, 349, 54 L.Ed. 793 217 30 S.Ct. U.S. us where the line falls that divides not tell (1910), registration that is even to establish effects, permissible impermissible from but It does not aid his case. “punishment.” degree” know the “matter is some and unusual down as cruel Weems struck imprisonment where between and revocation Philippine imposed punishment a law hand, citizenship on one and loss of a pub- for falsification of punishments horrible profession or on the other. benefits Com 363, Id. at 30 at 547-48. lic documents. S.Ct. Florida, 423, pare Miller v. 482 107 U.S. entry, and Any false even unintentional (1987) (increased 2446, 96 L.Ed.2d 351 S.Ct. effect, triggered ill the “cadena tem-

with no “punishment”) Trop incarceration is imposed poral.” punishment Id. This hard Dulles, 86, 590, 78 S.Ct. L.Ed.2d period painful labor for a from twelve (1958) (revoking citizenship “punish years day twenty years, at and a shaekled ment”) Braisted, with De Veau v. 363 U.S. ankle, the wrist and the with no access to 144, 1146, ones, family extinguishment of or loved (forbidding “pun work as union official not sentence, serving per- rights civil while ishment”); York, Hawker v. New disqualification petual political rights, from (1898) (re 42 L.Ed. 1002 office, holding such as and “surveillance.” voking “punishment”) medical license is not Id. at 30 S.Ct. at 548. Nestor, Flemming (1960) (terminat S.Ct. L.Ed.2d 1435 The Weems Court confronted a different security “punishm social benefits not from one in issue this case. The Court ent”).29 punishment held that this harsh as a whole strong marshals reasons noti- relatively and unusual mi was cruel for the devastating fication would have effects. nor offense involved. Id. at at part addition to the ostracism that is of its 555. And the “surveillance” statute very design, subjects pos- notification him to up part punish made a minor of the total vigilante reprisals employ- sible loss Megan’s ment differed from Law in at least ment. And fact past unlike the mere of his significant respect: one the unfortunate of conviction, might which be learned required fender in Weems was to obtain writ records, employment questionnaire public permission ten before he could move. See id. notification under Law features the larger 547 - 48. Given this State’s determination-based overwhelm- context, the Court’s dictum harsh about the ingly past prior on conduct-that of- hardly ness of “surveillance” establishes that danger community.30 is a fender future registration “punishment.” however, reemphasize, as forceful as be, Artway’s arguments seem to the issue of Finally, registration historically because ripe notification is not at this time. regulatory salutary pur- technique with a pose, any purpose hand, incidental to deter future registration, On the other by past offenses sex not invali- phase Megan’s upon offenders will which we pass judgment, impact. date it under Kurth Ranch. has little Most of course, Veau, Hawker, presume, purpose 29. Of insofar as De tive and effect tests. We test, Flemming purpose therefore, undertook an actual provide that these cases must bench- they methodologically incomplete compared permissible marks for effect. “punishment.” with current law on Neverthe- less, because these cases have not been over- 30. Past criminal conduct is the basis of 90 of ruled, try consistently we must to read them possible points Registrant in the Risk Assess- so, challenged current law. doTo the measures ment Scale. subsequent objec- in these cases must survive the already the information is available Equal The Protection Clause provides public It is disclosed “deny record. no state shall any law enforcement, person jurisdiction ready within its equal pro which has access to this And, notification, tection of history. criminal the laws.” unlike U.S. Const. amend. §XIV 1. by the information contains This is not a no assessment command that all persons but, rather, be treated Artway alike danger. the State that is a future “a di Therefore, persons rection that all impact, similarly coupled this even with the situated should City be treated alike.” registrant’s Cleburne inevitable kowtow to law enforce- Center, Living Cleburne officials, ment cannot be said to have an 3249, 3254, (1985) 87 L.Ed.2d 313 effect so that it “pun- draconian constitutes added). (emphasis scrutiny The level of ap any way approaching ishment” in incarcera- plied to ensure that comply classifications losing tion. It than profession is less harsh guarantee with this depending differs on the or benefits. nature of the classification. Classifications unpleasant While there doubtless are some involving suspect class, quasi-suspect or or consequences registration-it possible impacting certain fundamental constitutional police engage will leak information or in rights, subject heightened scrutiny. presume official harassment-we must classifications, however, Id. Other need obey law enforcement will the law. rationally legitimate govern related to a Moreover, Artway, who of course bears the goal. Chapman States, ment See v. United proof burden of to invalidate a statute on 1919, 1927-28, grounds, presents constitutional no evidence (1991) (applying rational consequences flowing this record of dire basis test to classification based on nature of registration. from offense). Megan’s requires persons who Summary Registration D. Claims have committed completed their offense and incarceration, probation all parole by Analyzing registration provisions date the register only Law was enacted to if (1) Megan’s purpose, Law under the actual they “repetitive were found to be and com- objective purpose, prongs effects pulsive” at sentencing. challenged cate- “punishment” test, of our we conclude that gory-“repetitive and compulsive sex of- registration Megan’s under Law does not suspect quasi-suspect fenders”-is not a “punishment” any constitute under measure Cleburne, class. See 473 U.S. at Hence, of the term. it does not offend the (listing receiving 3253-54 classes Facto, Ex Jeopardy, Post Double or Bill of race, heightened scrutiny alienage, nation- Therefore, although Attainder Clauses. our sex). origin, al implicate It also does not analysis employed by differs from that right.for fundamental constitutional which district Supreme court and the Court of New granted heightened Court has Jersey, agree we with their conclusion re- equal protection scrutiny. Chapman garding registration. States, United S.Ct. at (applying 1927-28 rational basis test to clas- EQUAL YI. PROTECTION offense). sification based on nature of This classification, therefore, subject “is Turning to the remainder of general legislation presumed rule that claims, by begin rejecting argument his be valid and will be sustained the classifica- Megan’s equal protection. Law violates by rationally tion drawn the statute is related Megan’s contends that Law’s distinc- Cleburne, legitimate to a interest.” state tion “compulsive repetitive” between sex cases). (citing U.S. at at 3254 offenders and other sex offenders is “arbi- trary discriminatory.” However, Registration easily satisfies re Equal Protection quirement. Clause does not all Protecting forbid vulnerable individuals discrimination, and the certainly distinctions made legitimate sexual offenses is arbitrary. Law are not Requiring registration state interest. of con-

1268 First, “repetitive argument subparts. Artway has two to be found offenders victed sex register argues requiring that him to on the opposed as to other sex compulsive,” and “repetitive compulsive” and find- population, basis the rest of the offenders See, process e.g., finding due goal. ing violates because to that rationally related supposed 135 A.2d was unreliable when made. 25 N.J. Wingler, State v. unreliability alleged an lack of of re- stems from (holding that classification 468 making training employees these “has State compulsive sex offenders a petitive and contends, Lockhart, Second, basis”); he determinations. hold- v. 826 rational Mahfouz (8th Cir.1987) him 791, (applying ration- accountable for this determination 794 F.2d process due he did not violates because have to hold that Arkansas statute test al basis sentencing time work/study nega- re- notice at the excluding sex offenders implications finding. Artway tive this ad- program for inmates did violate lease right that he of his legislature mits was advised protection). The could have equal “repetitive compulsive” contest the and find- rationally that sex offenders who concluded incarceration, finding probation ing, but contends that such a in completed all was had reintegrat- hope good his interest because it was his parole had chance obtaining being placed treatment and in a ing into their communities therefore center, general Also, realizing peo- pris- from the posed risk. that treatment safe a lower rejoined society population. on ple had had the most to who lose, rationally legislature de- could have Although why spell using he does not out require “repetitive compul- cided to “repetitive compulsive” finding register. category sive” offenders against process him a due would amount to Thus, equal this classification does not offend deprivation, we will he means assume that protection. “fundamentally such actions would be un Williams, Louisiana, 327, Artway’s reliance on v. Daniels 474 Foucha fair.” U.S. Cf. 71, 1780, 677, 341, 106 680, 112 504 S.Ct. 662 U.S. S.Ct. 88 L.Ed.2d (“Petitioners (1992), scrutiny (Stevens, J., establishing heightened concurring) as must misplaced. procedures] held that that [the this case Foucha show state contain a allowing state statute continued confinement defect so serious that we can characterize the acquitted unfair, procedures fundamentally reason of insani of an individual defect person ty, when that had ceased to that we to conclude even so basic are forced that 78-83, ill, mentally process. deprivation violated due Id. at pro occurred without due cess.”). plurality at indicat S.Ct. 1784-88. A 112 doing equal protection so was ed also But argument even this has no mer 84-85, at violation. Id. 1788. it. We need not the issue of reach But, Megan’s Law, unlike the statute Fou- unreliability fairness-whether because subject physi cha denied those to it of their oppose-of or lack of incentive to the “re liberty, recognized cal which the compulsive” finding. petitive and One must right trigger as a fundamental constitutional life, liberty, an interest in or property have ing heightened scrutiny. See United States process protections triggered. due before Salerno, 750, 739, 2095, 481 U.S. XIV, 1;§ Const. amend. see also (1987).31 2103, 95 L.Ed.2d 697 Kelly, Goldberg v. S.Ct. L.Ed.2d has no DUE VII. PROCESS reputational interest damage, such Doe, reject accompanies any, registration. also contention 367; 103-06, process by 142 N.J. at 662 A.2d Paul v. denies due Davis, classifying basis former offenders on the

“repetitive compulsive (holding damage L.Ed.2d mere behavior.” This Moreover, heightened scrutiny plurali- equal protection in- issue: The classification of ty particularly hints at-"the State have a sanity acquittees must underinclusive was so reason," convincing id. at even was not rational. probably unnecessary 1788-was to decide the trigger reputation pro- applications, insufficient to due provisions we deal with the Clark, cess); Megan’s they apply Sturm v. F.2d Law as to him.33 Cir.1987) (3d (holding reputation harm to and Under the relevant section of Me insufficient to confer financial interests liber- Law, gan’s person who has been convicted interest). stage, ty “repeti- And at this of a “sex register. offense” must Paragraph finding subjects him compulsive” tive and to (1) of that section defines “sex offense” to registration.32 no than more “aggravated assault, include sexual sexual as sault ... if the court found that the offend Artway may liberty have a interest in noti- er’s by conduct was pattern characterized triggering under law state federal fication repetitive compulsive and behavior.” Doe, process protections. due See 142 N.J. (3) Paragraph of that section further defines 103-106, But, explained 662 A2d 367. “sex offense” to include “a sentence on the IV, supra challenges Part his to notification basis of criteria to similar the criteria set yet ripe. are not paragraph forth in ... entered or im posed States, under the laws of the United VIII. UNCONSTITUTIONAL this state or another state.” N.J. Stat. Ann. VAGUENESS added). (emphasis 2c:7-1b. Artway’s argument The crux of is that the Artway argues Megan’s next “sentenced on the basis of criteria similar to” unconstitutionally vague Law is because language process by violates specify due him “guess” forces whether he is covered predicate clearly. crimes more But by disagree. process the Act. We Due re Artway’s duty register patent under the quires only penal give persons that a statute Act. requires registration Law intelligence” of “common fair notice about criteria”, those sentenced under “similar “what the State commands or forbids.” Lan “aggravated assault, sexual sexual assault 451, 453, Jersey, zetta v. New 306 U.S. ... if the court found that the offender’s (1939). 618, 619, 83 L.Ed. 888 While conduct was pattern characterized Artway appears style complaint his as a repetitive compulsive behavior.” N.J. challenge, facial standing he has to raise Thus, Stat. Ann. Artway reg 2c:7-1b. must vagueness him applies of the Act as it ister if engaging he was sentenced for prove unless he can vague that the Act is (2) “repetitive “sexual assault” and and com substantially applications. all Village its pulsive” behavior. Flipside, Estates v. of Hoffman Hoffman Estates, Inc., 489, 494-95, (in words) Artway 455 U.S. argues many that, so 1186, 1191-92, (1982); 71 L.Ed.2d 362 sodomy require United because the crime of did not Powell, States 96 S.Ct. an element of violence at the time he was (1975). convicted, 46 L.Ed.2d 228 Because Art it is unclear whether he falls under not, cannot, way does establish requirement. that Me the “sexual assault” The statu- gan’s vague substantially crime, however, Law is tory all its elements are a express opinion regarding 32. We no Artway's argu- whether Art- 33. We also decline to address ment, Court, way may challenge made "repetitive be able to in his brief to this his Me- gan’s if, apply compulsive” does not to him as a matter finding hearing at a notification Jersey certainly New law. We almost fact, cannot he is ever slated for notification. We also grant Artway’s requested injunction relief-an express opinion Artway may no about whether be against enforcing state officials from this law- registration, able to avoid on a basis other than on this basis. See Pennhurst State Sch. and process, prove due "repetitive if he can that the Halderman, Hosp. v. compulsive" finding was never valid. Final- (1984) (holding that the Eleventh ly, opine question- we do not on the related enjoining Amendment bars federal courts from posed by Artway which is not now in these law). violating state officials from state More- theory terms-whether he on some over, problem, confronted with the Pennhurst (or for) able to avoid to terminate the need relief, Artway going has disclaimed this claim for registration prove original if he can argument so far as to insist at oral and in a "repetitive compulsive” finding longer no subsequent letter memorandum that it was never any validity. current his to seek such relief intention Court. Pullman, under Railroad Commission herring. was sentenced red law, 85 L.Ed. 971 Pull which Jersey’s prior sex offender New courts, federal in rare man abstention allows finding of “violence” and both required a cases, deciding abstain if a to from case compulsive and “repetitive behavior.” court’s of a state law issue state resolution judge made a find- sentencing particular, the for the court would obviate the need federal sentencing Artway that used violence ing at reach a federal constitutional issue. The to Artway v. to sexual act. See perpetrate attempts (3d to avoid constitutional doctrine Pallone, F.2d & n. 3 672 1170-71 promote principles and of questions federal crime). Cir.1982) plainly (describing This is However, Pullman abstention “is an ism. sentencing judge The also sexual assault. extraordinary exception and narrow to the Artway engaged “repetitive had in that found adjudicate duty of a District a con Court Thus, compulsive” id. behavior. See and troversy properly can be [which] before Artway “a sentence on the basis of received justified exceptional ... only in circum para- similar to both elements of criteria” Colorado River Water Conserva stances.” facially ap- graph Because the statute States, v. tion Dist. United plies Artway, reasonably know he could of (1976) 47 L.Ed.2d duty register. his Allegheny County v. Frank (quoting Mashu Fauver, Artway’s citation Hluchan Co., da (D.N.J.1980), F.Supp. 1155 is of no avail. (1959)). 1062-63, 3 L.Ed.2d 1163 reasoning of Fauver if we found Even inapposite. jurisprudence, a persuasive, it is That case in Under our district regu protection challenge findings must make in equal an court three order to volved justify prisoners purpose exception general classified the Pullman lations that custody that eligibility. Id. rule federal courts must hear cases minimum brought jurisdiction. rationality regulations properly their open-ended The within (1) issue, question not the notice of The Court must find that uncertain was at fair issues (a process law vagueness claim due chal of state underlie the federal constitution this (2) Moreover, brought court; in Fauver claims in lenge). regulation al the district objectionable pres not state was three reasons that the law issues are amenable to a First, Law, Megan’s interpretation unlike court that would ent this case. state obviate for, narrow, regulations initially substantially adjudi “sex of the Fauver left the need (thus (3) claim; completely undermin fense” undefined cation federal Second, rationality). important Id. state policies disrupted its at 1157. would be provision present through not a federal regulations contained court’s erroneous construc in Megan’s Corp. Law for the court tion of state law. III which was See Chez Sez (3d Union, meaning.” Township Id. unable to “determine the Fi 945 F.2d Cir.1991). nally, incorporation present, offenses” If of “sex all three factors presented equal protec states an the federal court must consider other then whether problem, thought, appropriate weighing tion the court because abstention is “the such availability danger adequate convicted of factors as exists individuals juris remedy, length the litigation the same criminal conduct different state of time pending, differently.” impact delay dictions will treated Id. has been on finding protec litigants. Id. equal doubt the soundness at 633. “dangers”

tion violations on the basis of Abstention is warranted here. but, any event, pass, have not come to First, although a state law issue-whether Artway was convicted under the laws the Megan’s applies Law to him-underlies Jersey problem State New and faces no claim, the federal constitutional issue applicability with the other of laws of states. Megan’s clearly not “uncertain” because supra. to him. applies See Part VIII Sec IX. PULLMAN ABSTENTION ond, applicability Megan’s because the Finally, patent, we conclude that the district Law to this issue is not court to a refusing did not err to abstain under “amenable” state law determination compulsive” obviate the need for a federal constitu- Megan’s would classification of equal protection; tional determination. Law does not offend formulations to describe alleged unreliability has used various and unfairness of Art- “amenability,”34 no matter we way’s “repetitive but which compulsive” determina- uncertainty adopt, the lack of about the state tion does not process; violate due precludes prong: issue satisfaction of this law unconstitutionally vague Law is not a certain issue is not “amenable” to a con- applied Finally, to him. we hold that the trary interpretation. The third factor- district refusing court did not err in to ab- improper interpretation whether an of state stain under Pullman. important disrupt poli- law would state judgment of the district court will be scope cies-favors the state because the of enjoins vacated insofar as it the enforcement Megan’s important Law is an state issue.35 of Tier and Tier 3 notification under Me- Nevertheless, two of the three fac- essential Law, gan’s and affirmed insofar as it holds lacking tors for abstention are even before 1) registration provisions the (including Tier factors; hence, weighing

we come parties Law constitutional. The shall Pullman abstention is inappropriate. bear their own costs. X. CONCLUSION SHADUR, Senior Judge, District concurring: reasons, foregoing For the we hold that Artway’s the lion’s share of un- claims are At the outset I emphasize should that this ripe. particular, unripe we will dismiss as brief disagreement concurrence reflects no (1)

Artway’s pro- claims that the notification with the results that have been in announced visions Ex of Law violate the Post Judge Becker’s detailed and masterful treat- Facto, Attainder, Jeopardy Bill of or Double enormously complex subject ment of the mat- (2) Constitution; Clauses of the U.S. upon ter that we have been called to deal provide Artway process the must State more contrary, with here. To the both the ulti- receiving challenging for notice of and the mate resolution of each substantive issue notification determination. We also hold un- (with posed by the record before us and the ripe the claim of the Chief of Police of Wood- here) exception reasoning limited set out the bridge Township immunity that state bars by which those results have been reached are “potential liability” his hypothetical for a subject panel’s agree- the of our unanimous § seeking damages. 1983 action I express-the ment. Instead write to (which regard

With to claims that are view is dealt with in somewhat differ- currently justiciable, majority we hold that the form in opinion) ent n. 16 of the Halper registration component Megan’s United States v. Law does play does not the Facto, not violate Ex Jeop- precise majority’s the Post Double exposition role that the ardy or Bill imper- suggests analyzing of Attainder Clauses as in concept “punish- the “punishment”; missible “repetitive the ment.” Fauver, Biegenwald (3d Cir.1990). Lipscher, 34. See 882 F.2d v. 906 F.2d at, .(quoting Wright Here, n. 3 17ACharles A. et Feder- provided explanation the district court no § al Practice and Procedure at 42-44 why significant policies about state would not be (1988)). leading interpreted A commentator has interfered with an erroneous decision about Supreme typical the Court’s formulation of scope Megan’s Artway the Law. See v. Attor amenability-that “fairly subject” the law be General, (D.N.J. ney F.Supp. 670 n. 4 interpretation eliminating a state court the con- 1995). simply It concluded that because establishing fairly high stitutional issues-as facing penalty regis "is a criminal if he does not requiring possibility” threshold a "substantial [,] today any argument ter ... for abstention interpretation that a state would obviate the need Thus, obviously fails.” Id. the district court for a federal constitutional decision. Erwin appears skipped straight to have to the discre Chemerinsky, Federal Jurisdiction 692-93 tionary balancing hardships. agree equities Artway, weighing the favor but this necessary-and appropriate-only if the

35. This Court reviews district court decisions on requirements three for are met. abstention this factor under an abuse of discretion standard they "adequately explained." Hughes being I “[c]abining agree than But with the at all a matter of remedial. is not This majority’s n. monetary penalties,” n. 24 of 16 that those can be as sentences Halper though to me the critical element the First Cir describes majority opinion reconciled— in phrase of that reconciliation is “to the United States Stol opinion recent cuit’s that,” I have also extent which therefore courts Any lower efforts ler. Although dif- emphasis. underscored for system interpret the sometimes federal subtle, signifi- I ference is believe pronouncements Delphic from the (to amplify. Let mix cant. me can met on occasion resemble Court two aphors) divination of entrails. When process synthesizing Halper In the Judge respected judges as such able and (which agree represents Kurth I Ranch Judge the First Circuit’s Bruce Becker and approach), criti proper it seems me to be Selya differing to such conclusions come recognize cal to the context in which significance single Su meaning stated, Halper spoke. already As Hal- court synthesis preme opinion type Al per monetary penalty. did deal with a attempted that each of them though that is not of course a basis defining “punishment” course double restricting significance solely to the case’s very that jeopardy purposes, difference cre “punishment” non- monetary types such or strong implication a that the oracular ates “punishment,” help explain the it does to authority message from the ultimate ranks significance language of the “to the extent” high obscurity. in With the scale some earlier-quoted excerpt Halper. in the trepidation, I like add a few com should to example $100,000 prop If for a forfeiture of explicate Halper. in effort to ments a further erty previously-convicted aof defendant is imposed, remotely one approx “that does not repeating It is two worth consecutive damages imate the actual Government’s 448-49, Halper, 490 sentences in U.S. at costs, justice rough clear [so that] becomes (citation omitted) at that S.Ct. 1901-02 have injustice” (Halper, 490 US. at oppo- puzzling appearance looking in 1901),it Jeopardy at runs afoul of the Double directions, seemingly site based on their odd precisely Clause because of that excessive “only” usage placement of the word in is, triggers That ness. such excessiveness each of the sentences: Halper language jeopardy that is double premises, From it that a civil these follows “to involved the extent that sanc the second fairly solely sanction that cannot be said to may fairly tion not be characterized as reme purpose, serve a rather can remedial but dial, only but aas deterrent or retribution” only explained serving be as either also (id. 1902). 449, 109 at at pun- purposes, retributive or deterrent ishment, Judge soupmeat Just so have Becker’s as we come to understand analogy. previously-convicted If the term. that a defendant We therefore hold under soupmeat appro- is sent out Jeopardy armed with Double Clause a defendant (snow priate protection already punished against the who has been in a crimi- elements cold), jeopardy prosecution may subjected nal not to no double concerns be implicated. civil sanction But the answer is different when additional to the extent that changed may the circumstances are to include the fairly the second sanction be char- not remedial, unjustified clothing deprivation of warm only as but as a deter- acterized Why? previously-con- rent or boots. Because the retribution. person “may subjected be [that] victed not usage that appears surface terms leave additional civil sanction to the extent that the land, gap, a with the first of the no-man’s may fairly character- second sanction be puni- saying sentences that a civil sanction is remedial, only ized as as but a deterrent (and jeopar- tive is hence outlawed on double (id.). retribution” dy principles) unless it a remedi- serves analysis I purpose, saying majority al second that a civil and the Where believe impermissible jeopardy presents sanction for double difficulties is not in the area of purposes solely monetary hypothetical to the extent that serves sanctions or may carved deterrent or retributive functions rather situation which a sanction be (like (490 elements, up soupmeat?) into discrete this concurrence U.S. at 1902-03): extending approach but situations in which the second sanction does not lend we announce now What is a rule for the parsing a convenient out or itself such case, rare the case such as the one before (in splitting that is true both of a the manner us, fixed-penalty provision where a sub- monetary penalty, part of which can be la- jects prolific small-gauge but offender to part as remedial and beled which overwhelmingly a sanction disproportion- purposes, what is exceed needed remedial damages ate to the he has caused. The soupmeat example, and of the which can also rule is one of reason: Where a defendant readily separated compo- be into different previously has penalty sustained a criminal sanction). respect nents of the It is in that penalty sought and the civil in the subse- respectfully suggest I first quent proceeding bears no rational relation quoted Halper sentence from cannot be iso- goal compensating the Govern- Halper lated from the next one-that loss, ment for its but appears rather perceived pronouncement should not as qualify “punishment” plain in the mean- sanction, every type “punish- that as to word, then the defendant (with potential ment” its effect for double accounting entitled to an of the Govern- jeopardy purposes) is involved unless the damages ment’s and costs to determine explained entirely sanction can be without penalty sought in fact constitutes a ascribing to it some retributive or deterrent punishment. second component. hand, certainly On the other I agree with majority opinion correctly says theAs majority Halper impor contributes page 1265: tantly analysis, by to the total both its ac Here, solely purpose help- remedial knowledgement penalties may that “civil” agencies keep law enforcement tabs on (id. punishment constitute at fully explains requiring these offenders 1901-02) by at adding concept register. certain sex offenders to (id. objective inquiry analysis to that 1901). 109 S.Ct. at this So concurrence equally say And it is correct to began, joinder concludes as it with a total “solely remedial” characterization is not al- Judge the conclusions reached in Becker’s Artway may tered legiti- the fact that opinion majority, fine for the and with a mately perceive registration imposing de- departure opinion’s from reasoning only consequences terrent or retributive on him (as voicing suggested terms of caveat —a states, Halper itself at 447 n. against ascribing caution degree excessive contrary, 1901 n. “On the our importance portion language to one of the acknowledged cases have that for the defen- quoted Halper forge the effort to carry dant even remedial sting sanctions synthesis juris total Court’s punishment”). prudence jeopardy for all future double anal- this, having again But said all I stress yses. unnecessary that it is to our unanimous con- validity clusion about the registration

provisions Megan’s Law-a conclusion just-stated

that follows from the determina- provisions

tion that purely those remedi- go

al-to on to decide what our conclusion

would have been we had determined that

they partially were retributive or deterrent remembering

as well. It is worth that Hal-

per against itself contained a caveat univer-

salizing the rule announced. Here is page

what it said later down the from the

language quoted by majority opinion both 1261-62 and notes general derive a rule from the inteipreting protection cases this different under precedents apply it to the Court's facts However, Amendments). and Sixth the Fifth case, specific not tailor a rule to the facts. continued, approach “the is not well suited disagree Judge view that We also with Shadur’s safeguarded by ‘humane interests’ language Halper a rare the “rule for case” proscription Jeopardy Clause's of multi- Double general ends-means test of that case. limits ple punishments." Id. The Ex Post Facto and quotes Judge Id. As the words Shadur make Clauses, course, implicate Bill of Attainder clear, general Halper calcu- the “rule” is not the jeopardy "humane interests” as double same protections. lus, holding but the of that case: that under objective The move to a more anal- Halper does the extreme factual circumstances of therefore, change ysis, is better understood as a “punish- fixed-penalty provision constitute resting any approach than as on fundamental general ment” under the means-ends test. jeopardy, ex in the nature of double difference event, agree Judge any that our Shadur facto, protections. post of attainder and bill complex in- in this case are small differences deed. subjec- moving past exclusive reliance on 19.In intent, partly legislative the Court heeded the tive jeopardy though Halper 18. Even was a double Frankfurter, expressed al- of Justice admonition case, away subjective purpose earlier, its move century that such "dialectical most half apply post should to ex facto and bill of attainder approach to an unworkable subtleties” were explained that the "punishment” jurisprudence. claims as well. The Court States United Hess, "identify- subjective approach appropriate in was proceeding, 87 L.Ed. 443 the inherent nature of a

Case Details

Case Name: Artway v. Attorney General of New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 12, 1996

Citation: 81 F.3d 1235

Docket Number: 95-5157, 95-5194 and 95-5195

Court Abbreviation: 3rd Cir.