Doe v. State

DOE, pseudonym, Appellant, John Alaska, Appellee.

STATE

No. S-12150.

Supreme Court of Alaska.

July25,2008.

Darryl Thompson, Darryl Thompson, L. L. P.C., Appellant. Anchorage, for Wendlandt, Attorney Diane L. Assistant General, Special Prosecutions and Office Marquez, Appeals, Anchorage, and David W. General, Juneau, Attorney Appellee. FABE, Justice, Before: Chief MATTHEWS, EASTAUGH, Justices. II. AND OPINION FACTS PROCEEDINGS EASTAUGH, Justice. charged "John Doe" was in 1985 with three first-degree I. mi INTRODUCTION counts of sexual abuse of a molesting daughters.2 Doe nor for one of his Alaska statute known as the Alaska The pleaded no contest to one count of first- (ASORA) Registration Act Sex Offender re minor, a degree sexual abuse of an unclassi quires persons convicted of sex offenses to felony, fied and to one count second-de periodically re-register register and with the minor, gree B sexual abuse of a a class Corrections, Department of Alaska the Alas felony. superior accepted plea court his Troopers, police, or local and dis State years impris and him to sentenced twelve information, personal detailed some of close suspended. began onment with four Doe public. not otherwise Most of the which is August in serving his sentence publicly disclosed information is disseminated published by and is the state on the internet.1 completed serving In December 1990 Doe Doe," applying Does ASORA to "John who unsuspended portion of his sentence less crime and committed his was convicted and good-time required a reduction AS enacted, sentenced before ASORA was vio 33.20.010(2) mandatory and was released late the ex of the Alaska clause parole supervised probation. Sep- In conclude that Constitution? We does be tember 1991the Parole Board released Doe imposes cause that have ASORA burdens mandatory parole nearly years two ear- adding punishment beyond effect of what ly, based on its determination that Doe had imposed could be when the crime was com participated in counseling rehabilitative reg therefore mitted. We hold that ASORA's posed public. little or no threat to the In requirement apply per istration does not completed period probation. 1995 Doe his sons who committed their crimes before effective, May Legislature ASORA became and reverse the 1994 the Alaska enact superior granting judgment court order final ed the statute known as the Alaska Sex (ASORA)3 Registration Offender Act It be against favor of the state and Doe. (B) 11.41.110(a)(3), Although imposes registration, re-regis- ASORA a crime under AS or a obligations jurisdiction, tration, and disclosure similar law of another in which provides person attempted private committed or to commit dissemination of following one of the crimes, or a similar law of information, we sometimes refer to these provi- jurisdiction: collectively requiring "registration," another sions un- greater (i) requires specificity. degree; less context sexual assault in the first (ii) degree; sexual assault in the second (iii) sexual abuse of a minor in the first pseudonym. "John Doe" is degree; or (iv) sexual abuse of a second minor Chapter 41 of the 1994 session laws contains degree; codified 56; in Title Title provisions chapter (C) crime, solicitation, attempt, or an 63; 65; chapters chapter 55 and Title crime, conspiracy to commit a under fol- 5; chapter chapter Title and Title lowing statutes or a similar law another Following amendment ASORA defines jurisdiction: "sex offender" as follows: "'sex offender or (i) 11.41.410-11.41.438; AS kidnapper' person child means a convicted of a (ii) 11.41.440(a)(2); AS kidnapping sex offense or child in this state or (iii) AS 11.41.450-11.41.458; jurisdiction regardless another of whether (iv) exposure AS 11.41.460 if the indecent conviction before, after, occurred or on January person years age before under 16 and the 1999; § 1999." Ch. SLA AS previous offender has a conviction for that 12.63.100(5). offense; ASORA defines "sex offense" as follows: (v) 11.61.125-11.61.127; AS "sex offense" means (vi) 11.66.130(a)(2) AS 11.66.110 if the (A) 11.41.100(a)(3), person a crime under engage AS or a who was induced or caused to jurisdiction, prostitution years age similar law of another in which was 16 or 17 at the offense; person attempted committed or to commit time of the offense, a sexual aor (vii) similar offense under the former AS 11.15.120, 11.15.134, former jurisdiction; subpara- rape laws of the other in this or assault with the intent to commit un- graph, meaning given "sexual offense" has the 11.15.160, 11.40.110, der former AS former 11.41.100(a)(3); in AS or former 11.40.200. ... closest to his new residence 10, 1994,4 department after Doe August came effective day.9 working within one sentenced, convicted, released from proba completed his he prison, but before Department the Alaska requires reg requires offenders sex tion. ASORA regis to maintain a central Public that contains the infor try of sex offenders Department Corree- the Alaska ister with under ASORA.10 ASORA mation obtained tions, Troopers, or local State the Alaska names, access to offenders' public authorizes registrants to disclose requires It police.5 birth, addresses, aliases, photo dates names, addresses, employ places of their physical descriptions, motor vehicle graphs, birth, their ment, information about date of information, employment, pub places of used, conviction, driver's license all aliases about their convictions lic information they numbers, about the vehicles information access to the information sentences.11 Public to, any identifying physical fea have access of a statement as to whether includes tures, changes, and in anticipated address compliance with AS 12.63 or fender is any treatment psychological about formation Department located.12 The cannot be registrants to be It authorizes received.6 Safety provides public access to the Public fingerprinted.7 Regis photographed by posting it on the internet.13 information up re-register periodically must trants a registrant appears on photograph A of each ag convicted of disclosures: those date their "Registered webpage caption under the Sex quarterly; re-register must gravated crimes regis Each Kidnapper.1 Offender/Child aggravated crimes convicted of those not registrant's page displays also trant's annually.8 A sex offender re-register address, must employ description, home physical address, give er, notice to informati changes residences must and conviction who work on.15 municipal police trooper office or the state viewing making public 12.63.100(6). erwise it available printed form. or electronic 41, 09.050(a) (AAC) SLA 1994. Ch. Code 13 Alaska Administrative 12.63.010(b). 5. AS 18.65.087(b). 12. AS 12.63.010(b)(1). argu- After we heard oral

6. AS 18.65.087(h) pertinent part: provides in 13. AS legislature Senate Bill enacted ment ASORA, amending effective sections of various provide Department shall The of Public Beginning January 2009. Ch. SLA department Internet website that on the regardless January registrants, all registry central of sex offend- maintains for the disclose their e-mail kidnappers as to date, conviction must also and child information ers addresses, addresses, messaging and oth- instant using public website how members of identifiers, Ch. er internet communication relating may compile the information access or kidnappers par- §§ a SLA 2008. or child 3, 6, to sex offenders map. geographic on a area ticular Safety, 12.63.010(b)(2). Department of Public Sex See Alaska 7. AS Of- Regis- Registration/Child Kidnapper Central fender try, http://www.dps.state.ak.us/sorweb/sorweb. 12.63.010(d), .020(a)(1), 8. AS 21, 2008). (last July Effective Janu- aspx visited department may provide a ary "the 12.63.010(c). 1, 2009, Effective 9. AS January for, pro- may participate ain federal method or department registrant notify within must also allows, gram to submit an elec- changing working day establishing an one messaging identifier address or Internet tronic or address, address, messaging e-mail instant whether the ad- a confirmation of and receive § Ch. internet communication identifier. regis- registered by a identifier has been dress or SLA 2008. kidnapper." Ch. or child tered sex offender 5,§ SLA 2008. 18.65.087(a). 10. See AS Safety, Department Sex of Public 14. See Alaska 18.65.087(b). regu- implementing 11. See AS The Kidnapper Registration/Child Central Offender pertinent part: lations state http://www.dps.state.ak.us/sorweb/ Registry, (follow hyperlink) sorweb.aspx all entries" "view department provide in the will information 21, 2008). (last July visited subject registry disclo- central any purpose, under AS 18.65.087 for sure by posting person, charge, oth- 15. See id. any without provisions require regis Doe to claims.24 The federal courts did not rule on re-register every ter and three months for Doe's state law claims. the rest of his life.16 But his information has January In 2005 Doe sued the state in the publicly never been released on the state's court, superior seeking judgment declaring (using pseudonym website. 1994Doe process him ASORA denies due viola- Rowe) sued state officials in the United tion of the Alaska Constitution. Doe also States District Court for the District of Alas requested temporary restraining order and challenging grounds ASORA on the preliminary permanent injunctions against prohibition violates the federal ex prevent requiring pub- the state from him to laws, pro the Fourth Amendment licly register. opposed The state Doe's mo- against hibition unreasonable searches and relief, injunctive August tion for In 2005 the seizures, contract, plea bargain his and his superior court It denied Doe's motion. de- right privacy.17 court The federal con poten- termined that Doe had established the cluded that Doe established a likelihood of harm, irreparable tial for but had not estab- post plea agree success on his ex facto and lished a likelihood success on the merits. claims, ment violation and found that It concluded that Doe had not that shown hardships tipped balance of in favor of Doe to registration requirement violated the extent his information would any right liberty fundamental interest and publicly disseminated.18 It therefore requiring publicly register Doe to there- granted preliminary injunction requiring pro- fore would not violate his substantive or act, register Doe to prohibiting under the but process rights. cedural due publicly disclosing the state from court, Anticipating appeal an to this parties

infor mation.19 In 1998 the superior temporary stay court entered a un- summary judgment filed cross-motions prohibiting der Alaska Civil Rule 62 the state granted and the district court the state's publishing disseminating Doe's infor- motion.20 parties agreed mation. The supe- no further appeal, proceedings necessary rior court

On the United States Court of were to re- Appeals for the Ninth Cireuit reversed the stipulated entry solve Doe's claims and summary judgment state's and held that judgment. supe- final In November 2005 the applied ASORAis an ex facto law as to rior judgment court entered final for the Doe.21The Alaska Public Commission against state and Doe. petitioned er for certiorari and the United appeals. Doe States Court reversed the Ninth concluding Circuit's decision after IH. DISCUSSION statute did not violate the federal ex facto clause.22 The Court remanded the case A. Standard of Review remand, to the Ninth Cireuit.23 On give ques rejected We de novo review to Ninth Cireuit Doe's other federal law, procedural process substantive due including statutory tions of issues of 12.63.010(d)(2). 16. AS Id. at 995. Burton, F.Supp.

17. See Rowe v. Doe, 84, 105-06, 22. Smith v. 538 U.S. 123 S.Ct. (D.Alaska 1994). This is de procedural history (2003). Otte, (9th I scribed Doe v. 259 F.3d Cir.2001), rev'd Doe, sub nom. Smith v. 538 U.S. Id. at 123 S.Ct. 1140. (2003). 84, 123 S.Ct. 1140, 155 L.Ed.2d Rowe, F.Supp. (Oth Tandeske, 24. Doe v. 596-97 Cir.2004), denied, cert. 19. Id.at 1388. L.Ed.2d 25 20. Otte, 259 F.3d at rev'd sub nom. Smith v. Doe, 155 LEd.2d questions of ruling according to law at the In on any defense available interpretation.25 But act was committed."29 time when the persua- law, rule which is most "adopt the give statute] fact alters reason, [a mere polic "[the light precedent, judgment her independent cireumstances to his or apply our convicted felon's y.2 We disadvantage does not in itself invalidate violates the determining a statute whether short, post facto." statute as ex Constitution.27 Alaska statutes; only penal applies prohibition Ex Post Facto Clause B. The question critical is therefore whether imposes punishment additional parties' contentions individuals, who committed their like compliance argues brief opening Doe's became effective. crimes before ASORA "harmful and on- impose with ASORAwould two-part use a test to deter Federal courts violating right his consequences," new erous punishme imposes a statute mine whether Because we determined process. to due the test we will describe nt.31 This is an ex argument essence of his apply in Part III.C. will Part IILB.3 and claim, parties to submit we asked the "intent-effects" test refer to this test as addressing whether briefs supplemental test. the "multifactor effects" pro- violates Alaska's applied to Doe ASORA "substantially it argues Doe that because post facto laws. against ex hibition consequences. to the alters" attached I, 15 of the Alaska Constitu Article section crime, satisfies Alaska's completed I, tion, 9 of the United like article section applied only if ASORA is post ex facto clause Constitution, ... provides "[nJlo that States persons who committed prospectively, passed." An ex shall be post facto law ex 1994, 10, when August after their crimes "passed after is a law post facto law effect.32 ASORAtook act, of an a fact or commission occurrence of arguments sup main in Doe advances two legal con retrospectively changes which First, recognizingthat United port. fact or of such sequences relations 28 prohibitions v. Doe Supreme Court held These constitutional Smith deed." States federal ex does not violate the enacting any law that ASORA legislature bar clause,33 argues that the Alas Doe previously post facto a crime an act "punishes that done; protection more provides committed, ka Constitution was innocent when which urges Doe us than the Federal Constitution. punish more burdensome which makes commission; post facto clause crime, the Alaska ex to read after its ment for 4 process due clause3 conjunction with the a crime of deprives charged one which A), State, (Doe (Alaska 92 Dep't Pub. 1378 Doe v. 1377, 816 P.2d 29. State v. Anthony, 398, 2004) (Alaska (holding 1991) ASO- (quoting that Florida, 282, 432 U.S. P.3d 402 Dobbert v. pro- (1977)). requirements violated due L.Ed.2d 344 RA's 2290, 53 292, recipients suspend- rights of set-aside whose cess impositions entered under of sentences were ed Braisted, 144, 363 U.S. De Veau v. Id.; see (1960). 160, 1146, showing require 4 L.Ed.2d 1109 provisions substantial rehabilitation). 1140; S.Ct. 123 31. See (Alaska Murtagh, 606 v. 169 361-69, 117 State U.S. Hendricks, Kansas v. 521 (1997); United 138 L.Ed.2d 2007) S.Ct. (holding of Alaska Vic certain provisions 248-49, Ward, they S.Ct. Rights' because v. Act unconstitutional States tims investigations defense 65 L.Ed.2d interfered with criminal adequate justification). without Ch. SLA 1994. A, at 402. 27. Doe 92 P.3d 84, 105-06, 33. Smith Blodgett, 147 P.3d In re Estate of State, 2006) (Alaska (quoting Danks v. 1980)); ("No (Alaska see also Kahn § 7 shall 722 n. 3 I, Const. art. 34. Alaska person life, liberty, property, due deprived without Dep't & Human Inspector Gen. U.S. Health persons (S.D.N.Y.1994) right to fair Servs., process of all of law. The F.Supp. Dicmomary legislative (5th just the course of treatment (quoting Law Brack's infringed."). investigations not be ed.1979)). shall executive I, and article section 135 of the Alaska Con provision. consequent the federal The state argues pro stitution. He that Alaska's due ly concludes that because ASORA satisfies clauses, post cess and ex facto unlike the clause, post the federal ex facto ASORA also clauses, corresponding federal are aimed at post satisfies Alaska's ex facto clause.37 legislature and that both clauses are "protect intended to individual liberties from decisis Stare infringement." retroactive Doe therefore correctly The state notes that we have interpret reasons we should Alaska's ex precedent analysis relied on federal post broadly facto clause more than the cor addressing post state ex facto claims in the responding alternatively federal clause. He past. argues that post ASORA is an invalid ex We concluded in one case that a decision of post facto law even if Alaska's ex facto clause addressing Court an ex counterpart is coextensive with its federal challenge equivalent to a statute to the punitive because ASORA is under the federal dispositive any statute then before us "is standard. constitution, claim based the federal responds regu The state ASORA is we see no interpret reason for us to Alaska's latory help law protect intended to provision constitutional differently." In by collecting making pub information and case, another we saw "no reason to construe licly argues accessible. It that ASORA is parallel prohibition-article our law, penal not a it was not intended I, 15-differently section from the federal punish past convicted individuals for acts. another, provision." we relied on a The state also past contends that because our opinion in concluding Court discussing decisions the ex facto clause interpreted prohibition the Alaska challenged to be statute compensatory the same prohibition,36 as the federal punitive rather than and that it therefore did doctrine of obliges stare decisis us to hold violate either the federal or post state ex provision that the Alaska is coextensive case, facto clause.40 And in another we stat I, 35. Article aggravated section 1 of the Alaska Constitution considered to be an offense because it provides: one."). repetitive is a We there considered revoking whether Danks's driver's license be- principles This constitution is dedicated to the cause he had life, committed two offenses persons before the right that all have a natural to revocation statute was enacted liberty, pursuit violated the feder- happiness, enjoy- and the prohibitions post al and state on ex facto laws. ment of the rewards of their own industry; Noting rejected Id. persons equal Court had a equal that all and entitled to rights, opportunities, similar protection attack on habitual offender statute that under the law; provided punishment persons enhanced corresponding and that all for a fourth felo- conviction, ny obligations people we affirmed the and to revocation. Id. the State. 36. The state refers us to Coon, State v. 974 P.2d Creekpaum, Creekpaum 753 P.2d at 1143. (Alaska 1999) ("We 391-92 construe our contended that an extended statute of limitations post prohibition differently [ex state facto] no post was an unconstitutional ex facto law as prohibition."); Anthony, than the federal applied allegedly to him. Id. 1140. When he (''The parties agree P.2d at 1378 n. 1 that the ex offense, applicable committed the statute of post prohibition facto of the Alaska Constitution years. years limitations was five Id. Three later is the same as that of the United States Constitu- Legislature retroactively enlarged the Alaska tion."); Creekpaum, State v. 753 P.2d period bringing charges for of sexual abuse of a (Alaska 1988); State, and Danks v. 619 P.2d Creekpaum years minor. Id. was indicted five (Alaska 1980). alleged and two months after the offense. Id. Relying decisions on of the United States Su- 105-06, 538 U.S. at 123 S.Ct. 1140 Cf. preme Court and the Seventh and Ninth Circuit (holding applying ASORA to Doe does not Appeals, Courts of we concluded that because the clause). post violate federal ex facto punishment extension did not increase or change necessary the elements of the offense Danks, (citing approving 619 P.2d at 722 guilt, Burke, establish it did not violate ly quoting the Federal Gryger from the Alaska Constitution. Id. at 1143-44. (1948) ("The 92 L.E.d. 1683 sentence aas fourth offender or habitual crimi jeopardy nal is not to be viewed as either a new 816 P.2d at 1378. raised Anthony, Anthony penalty post challenge additional for the making earlier crimes. It is an ex facto to a statute crime, penalty a stiffened for the latest which is prior incarcerated felons convicted of crimes Nonetheless, have never federal post we endorsed [ex construe our state that "[wle ed differently analysis superseding than the fed limit post no ex facto prohibition facto] prohibition." ing independent eral our consideration of Alaska's post prohibition.45 ex facto have we Nor short, to do having seen "no reason" In interpretation federal indicated otherwise,42 post construed Alaska's ex we prohibition prevents facto us federal ex coexten prohibition in those cases to be different, reaching protec and more from corresponding prohibi federal with the sive tive, Alaska result under Constitution. accepted the federal tion. We therefore analyses and results. We did so notwith application therefore has no Stare decisis contemporaneous repeated standing our Today's does not overrule or here. decision and, authority recognition that we have the depend overruling any prior decision of duty provi- necessary, to construe the when court, depart any past it nor does gions provide of the Alaska Constitution to holding of this court. We have never arising out of greater protections than those adopted reading of Alaska's ex the identical federal clauses.43 would, overruled, prohibition that unless authority, ex following federal our today's foreclose result.46 implicitly facto cases have reasoned decision, today's analysis Nor is or the we unnecessary in those cases either here, analytical apply inconsistent with the analytical approach from the federal deviate approach approved deciding we have protect or to construe our constitution more post facto claims under the Alaska Constitu ively.44 implicitly so reasoned because reached an outcome not the federal decisions tion. Our reliance on the multifactor effects past the Alaska Constitution. test is consistent with our use of federal inconsistent with trial); State, (right jury ineligible perma Roberts v. effective date the statute's (Alaska 1969) Relying right (pre-trial nent fund dividends. Id. at 1377-78. 342-43 counsel). Braisted, 144, 160, Veau v. on De part (1960), 4 L.Ed.2d which regu upheld valid a statute that was enacted for 44. Accord 205 Ariz. Arizona Casey, latory purposes punitive and that was not (2003) ("Normally interpret effect, we concluded that because the statute's conformity clauses in the Arizona Constitution in compensatory puni purposes rather than were the United with decisions of States ex tive it did not violate either federal state interpretation of clauses in Court and its similar post clause. Id. facto However, States inter- the United Constitution. is, course, of the state constitution pretation argued P.2d at Coon Coon, 391-92. (citation province." quotations our and internal judicially changing evi- the standard of scientific omitted)). post violated the federal and state ex facto dence rejected argument Coon's because clauses. Williams, Adopting Robert F. State Courts Cf. prohibition applies only legis- post the ex facto Case-By-Case Doctrine: Federal Constitutional judicial decisions. Id. at 391. acts, lative Lockstepping?, Adoptionism Prospective 46 Wm. dictum, applied we noted that even if we also Mary 1499, (2005) ("[Sitatements & L.Rev. decisions, judicial Supreme prohibition [adopting doctrine] federal constitutional Missouri, 380, v. Court, in Thompson lawyers arguments should neither bind in their 387-88, 922, (1898), had 18 S.Ct. 43 L.Ed. 204 beyond the court itself in cases. It is nor future post challenge upheld against ex a statute facto judicial power incorporate the Feder the state in a criminal case evidence that made admissible interpretations into al Constitution and its future evi- that was not admissible under the rules of (Emphasis original.)). constitution." in the state by judicial decisions when the dence as enforced offense was committed. principle requires that 'The of stare decisis depart precedent: be met to Danks, two conditions at 722. 619 P.2d was errone- We must conclude decision change decided and that State, 636, (Alas ous when it was 558 P.2d 641-43 43. See Blue v. good public policy represents 'more 1977) counsel); such (pre-indictment right to Lem ka State, (Alaska good P.2d n. 5 from the on [will] than harm result' depar- Semancik, (Alas- State, 1973) confrontation); 99 P.3d ture." State v. (right of Lanier v. previous Because our decisions have 2004). (Alaska 1971) (right of con 486 P.2d Doe, State, frontation); possibility we of relief to not foreclosed Whitton v. 1970) (double (Alaska re- jeopardy); City to consider whether these two Baker v. do not need Fairbanks, (Alaska 1970) quirements been met. 401-02 471 P.2d resolving post in ex facto independently apply law state claims.47 courts the same test Constitution, long under the Federal as applying as And in that test here we also reach a result consistent with what the federal interpretation our protective is least as as interpretation.50 the federal appear What we have standards to have been before Supreme when the Court decided Smith.48 post said in our ex facto cases cannot be read prospectively limiting protections Court, Supreme considering That the after the Alaska Constitution to what federal the same factors and same statute that we might say corresponding courts later fed today, consider held Smith Doe that provide. eral clauses Nor could we have may there was no ex facto violation done so.51 First, questions. why seem to raise several holding doesn't Smith's control this case as a Finally, Supreme Court's discussion Second, why matter of stare decisis? doesn't certainly analysis Smith informs our here. Smith's discussion of the multifactor effects preempt But it does not and cannot our analysis applying test control our the same independent analysis or dictate the result we Third, factors? even if Smith's discussion of interpretation reach. Our of a clause in the directly controlling, those factors is not how Alaska Constitution by is not limited rationally can disagree we with it? interpretation Court's of the corre sponding federal clause.52 question, holding As the As the first Smith's not stare decisis here because Doe's claims recognized, Court has Constitution, are based on the Alaska where a state court merely rely [i]f chooses exclusively as Smith was based on the Federal precedents federal as it pree- would on the Con apply stitution49 Smith did not jurisdictions, edents of all other then state law or decide state law issues. only plain need make clear statement question, apply As to the second how judgment opinion in its that the federal deciding the multifactor being only effects test an ex cases are purpose used for the claim guidance, under the Alaska Constitu and do compel not themselves reached.[53] result the court has governed by tion is not how the federal rights privi- we find such fundamental Coon, 47. See 9174 P.2d at 391-92; State v. Antho (Alaska 1991); leges spirit to be within the intention and 816 P.2d ny, Creekp language our local constitutional and to be aum, 1143; Danks, 753 P.2d at 619 P.2d at 722. necessary kind of civilized life and Otte, (Oth 48. See Doe I v. 993-95 liberty ordered which is at the core of our Cir.2001) (holding applying ASORA to Doe heritage. constitutional clause), violated federal rev'd sub (Alaska 2004) Baker, (quoting Doe, nom. Smith v. 402). 471 P.2d at Id. Smith v. 538 U.S. 84, 92, (2003); Mullaney 155 LEd.2d 164 see also v. 1032, 1041, Michigan Long, v. Wilbur, 421 U.S. 95 S.Ct. 684, 691, (1983); 77 L.Ed.2d 1201 see also (1975) ("[Sltate L.Ed.2d 508 courts are the ulti- Friedman, Lawrence Incompletely Reactive and law."). expositors mate of state State Decision-Making, Constitutional Theorized Lemon, (Fall 2007) ("[The 77 Miss L.J. (explaining See 1154 n. 5 court explicate may adopt should interpretation that this court the basis its own difference of opinion meaning long application of Alaska over the Constitution as as it of a meets mini- provision by textually constitutional Supreme mum standards set United that is similar- States Constitution). interpreting provide deeper that the state Court Federal court should justification ruling for a constitutional than sim State, Department 51. As we stated in Doe v. ple disagreement majority with a of the United (Doe A): Public Supreme nothing wrong States Court. There is may course; We protec- not undermine the disagreement, minimum Supreme with such the by tions established the United States Court is not infallible. But ... state constitu interpretations Court's meaningful Federal Constitu- tional decisions that lack rationales repeatedly explained tion. But we have interpretive for the court's and doctrinal choices free, duty, we are we meaningfully are under a ... fail to contribute to constitu develop rights may additional constitutional impede tional discourse and well the effi privileges under our justice."). Alaska Constitution if cient administration of potentially susceptible to the federal a multifactor test is Consequently, the results of conclusions, availability different the of re- independent anal- opinions do not control our ported applying helps decisions test in- when, interpreting the Alaska Consti- ysis application in new cases. form its tution, guidance to either federal we look for ap- analytical framework precedent or the appropriate conclusion that it is Our adoption by courts. Our plied federal inquiry to our apply the federal test state law approved by the federal analytical approach indepen in this case is consistent with our not mean that we are courts likewise does dent consideration of each of the test's seven applied Court how bound factors, construing are here both because we question approach in Smith. The before protections of our constitution and re to Doe vio- applying ASORA us is whether viewing legislature. an enactment of our provision. As to Alaska's ex lates Therefore, though we choose to consid even sovereign Alaska retains its question, er the same factors the federal courts use authority. distinguish between civil remedies and erimi-nal pen alties,58 give independent we consider analytical approach Our choice of applying factors in the Alaska ation to these analysis by identifying the Constitution. begin our analytical In Smith appropriate framework. Purposes Is Punitive for C. ASORA Supreme Court considered the the Alaska Ex Post Facto Clause. under the Federal Constitu identical issue applied tion and the multifactor "intent-ef usually test would The intent-effects prior from the Court's fects" test derived require first us to consider whether the Alas test, this a court first decisions.54 Under ASORA, Legislature, it enacted in when legislature intended determines whether regulatory scheme that tended to enact impose punishment; punishment if was purpose If non-punitive.59 civil and intent, if inquiry the court's ends.55 But punishment regulation, but the test in legislature the court concludes require would next us to determine whether scheme, punitive that regulatory regulation non-punitive the effects of are so tended a analyzes next the effects of the statute court conclude that we must nonetheless ASORA punishment.60 imposes a number of factors to determine under punitive is nonetheless whether the statute necessary step the first It is not address adopted court has never effect.56 Our legislature of the test-whether intended test, Appeals applied but the Alaska Court punish convicted sex offenders- considering rejecting an ex part of the test-whether because the second challenge to ASORA in Patterson v. punitive-resolves effects are State.57 Assuming dispute us. without decid before appro- ing legislature intended ASORA to provides The intent-effects test an therefore focus on the non-punitive,61 Although priate analytical framework here. 1140; jeopardy, dressing issues of double 538 U.S. at 123 S.Ct. see constitutional See, facto, and self-incrimination claims. Ward, 242, 248-49, States v. also United (1980); Russell 65 LEd.2d 742 eg., 346, 360-61, Hendricks, Kansas v. (apply (Oth Cir.1997) Gregoire, jeopardy ing to double (referring two-step inquiry "intent- the intent-effects test to the as the test"). claims); effects 248-49, Ward, 448 U.S. at alleging (applying test to claim 100 S.Ct. 2636 92, Smith, U.S. at 123 S.Ct. 1140. against compulsory 55. 538 right violation of self-incrim ination}. 56. Id. Smith, 92, at 123 S.Ct. 1140. 59. State, 1007, (Alas- P.2d 1011 57. Patterson v. 985 grounds, App.1999), part overruled in on other Id. A, at 412 Doe n. unnecessary assumption also makes it 61. This 99-100, U.S. States, 93, 58. Hudson v. United 522 whether, as some commentators The decide 118 S.Ct. heightened suggested, employ inquiry court should Supreme applied in ad the Court has 1008 (7) they

statute's effects to determine appears whether "whether it excessive rela [ punitive.62 purpose tion to the assigned." alternative 64] effects, assessing a statute's the Su Supreme The explained Court has not the preme Court indicated in Ward the seven weight relative to be afforded each factor. Kennedy factors it listed in 1968 in v. Men 3 But recognized the Court has that the factors "provide guidance":6 doza-Martines some point differing "often directions" and (1) "(whether the sanction involves an af- no one factor is determinative.65 Determin restraint"; disability firmative ing punitive whether a necessarily statute is (2) weighing relatively subjective involves the historically "whether it has been re- factors. garded punishment"; as a We address each of the factors in turn.

(8) play only "whether it comes into on a scienter"; finding of disability 1. Affirmative or restraint (4) operation promote "whether its will We first ask "[wlhether the sanction in pumshmen’o—retmbu— traditional aims of an disability volves affirmative res deterrence"; tion and 6 traint."6 argues The state that ASORA (5) "whether ap- behavior to which it imposes physi involves neither because it no plies erime"; already is restraint, cal obligations has less harsh than an purpose "whether alternative occupational Supreme debarment-which 67-and, non-punitive may rationally Court has held to be which it be connected it"; assignable words, Supreme Court's "restrains [no] scrutiny Patterson, reviewing legislature's when (applying intent. 985 P.2d at 1013 Mendoza- See, eg., Wayne Logan, A. The Ex challenge Post Facto factors to ex Martinez Punishment, Jurisprudence ASORA). Clause and the applied The Court has Am.CriM.L.Rev. 1288-91 array factors broad Mendoza-Martinez legislative enactments to determine whether a "only Court stated in Smith that eg., sanction is civil or See, criminal in nature. proof" Smith, clearest would 92, 97-105, suffice to transform a 538 U.S. at 123 S.Ct. 1140 remedy designated by legislature as civil into (involving civil-criminal distinction in sex offend penalty. a criminal at U.S. laws); er at Hudson, U.S. 104- deciding S.Ct. 1140. But in whether a statute (concerning monetary penalties 118 S.Ct. 488 violates the Alaska Constitution we accord the occupational banking debarment for law vio challenged presumption statute a of constitution- lations); Hendricks, 361-71, U.S. at Alaska Civil Liberties Union v. State, 122 (concerning S.Ct. 2072 ality. civil commitment for sex (Alaska 2005) ("A constitutional Salerno, ually predators); violent United States v. challenge to a presump- statute must overcome a 739, 747-51, 107 S.Ct. constitutionality."). tion of We adhere to this (1987) (addressing L.Ed.2d preven whether approach Consequently, imposing here. tative purpose pre detention served remedial heightened presumption requiring "clearest Ward, venting danger community); proof" punitive rights effect could threaten (concerning monetary 100 S.Ct. 2636 protected by might the Alaska Constitution and penalties Act). violating assessed for Clean Water responsibilities be with the inconsistent of this Murtagh, court. See State v. 169 P.3d 602, 609 64. Mendoza-Martines, 372 U.S. at 168-69, (Alaska 2007) ("It obligation is the of the courts S.Ct. 554. interpret [provisions Alaska Constitution granting rights to those accused of so that crime] Hudson, (quot- 522 U.S. at 118 S.C. 488 they may applied particular cases and to ing Mendoza-Martinez, U.S. at 83 S.Ct. rights they provide ensure that the are not in- 554). fringed by any form of state action. 'Under government, Alaska's constitutional structure 66. Mendoza-Martinez, judicial 372 U.S. at constitutionally branch ... has the duty compliance mandated to ensure with the Constitution, provisions including of the Alaska "). compliance by legislature.' Hudson, 488; 522 U.S. at De Braisted, Veau v. 144, 363 U.S. 80 160, S.Ct. 1146, (1960); 448 Hawker v. New Ward, 249, U.S. at 100 S.Ct. 2636; Kenne York, 189, 196-200, 573, 170 v. Mendoza-Martinez, 18 S.Ct. 42 372 U.S. 144, 168-69, dy (1963); 9 LEd.2d 644 see also L.Ed. 1002 lives; all other rest of their quarterly for the may pursue but offenders sex activities annually for fifteen re-register must offenders change jobs or resid free to them leaves yea change who All sex offenders ences."6 rs.74 notify trooper state of residences must imposes no statute though the But even department closest to municipal police fice or restraints, agree with Justice we physical working within one new residences their in Smith dissenting comments Stevens's State, Depart in Doe v. day.75 we stated As affirmative ob significant "imposel[s] (Doe A), Safety "ASORA Public ment of every per stigma on and a severe ligations differently much thus treats offenders 9 First, ASORA appllies]."6 [it] to whom son parol probationers and the state treats than conduct post-discharge compels affirmative supervision."7 subject continued state ees to re-registration, dis (mandating registration, Second, of information, agree with the conclusion private closure Smith, in dissenting information) Ginsburg, also Justice under threat of of that updating through registrants, "exposes that ASORA significant and are The duties prosecution.70 their notification aggressive intrusive, compel offenders to they because community-wide crimes, humiliation and profound to agencies and dis law enforcement contact re In the decision ism."77 information, of which is otherwise some close ostrac Smith, observed public dissemination.71 the Ninth Cireuit of it for private, most versed names, Furthermore, [registrants'] associated ad periods "(bly posting time in dresses, offenders addresses on the employer are intrusive.72 Sex with ASORA ternet, subjects [registrants] to the Act or aggravated sex offense73 of an convicted damage community obloquy scorn re-register must more sex offenses two or attempted person to commit Smith, committed or 1140. The at 538 U.S. offense, under the or a similar offense a sexual 1010 non-punitive.82 has held be The personally professionally.78

them and practical Ninth Circuit observed ef- upheld constitutionality Court has of feet of this dissemination is that it leaves post-conduct professional sanctions that in open possibility registrant will prohibition cluded the of participation further 3 employment housing be denied banking industry8 opportu in the and and revocation of community hostility.79 nities as a result of comparable medical licenses.84 A bar for sex As Justice in concurring Souter noted pose might offenders who a risk to children Smith, significant "there is evidence of oner employment places frequented by chil practical being ous effects of listed on sex practical dren. But effects here can 0 Alaska, registry."8 offender Outside there predictably employment extend to all oppor reports have been of incidents of suicide non-employ tunities as well as to all other vigilantism against offenders on state life, aspects including housing oppor ment of registries.81 published reports tunities. There are disagree We also subjected pro offenders are sometimes Court's conclusion Smith that the obli group tests and designed actions force jobs them out of their and homes.85 We gations imposes are less harsh than occupational agree debarment which the practical Court that "[the effect of such un calls, percent reported (9th receiving and 24.8 harass- 78. Doe I v. Otte, 979, 259 F.3d 987 Cir. 2001), 84, rev'd ing sub nom. Smith v. threatening being mail as a result of listed (2003). publicly registries); 123 S.Ct. 1140, 155 L.Ed.2d 164 Malesky accessible Alvin Keim, & Jeanmarie Mental Health Professionals' Id. at 988. Sites, Perspectives Registry on Sex Web Offender 13 Sexuar J. Asuse: Res. « Treatment 53, 59 * Smith, 109, 538 U.S. at 123 S.Ct. at 1156 n. (reporting study that in a of 133 mental health (Souter, concurring); J., see also E.B. v. Verniero, offenders, professionals who work with sex 62.9 1077, (3d Cir.1997) ("Employ 119 F.3d 1102 percent respondents believed that sex offend- employment opportunities ment and have been registry ers listed in sex offender websites jeopardized Housing housing op or lost. targets vigilantism will become in the commu- fate."); have suffered a similar Doe v. portunities nity). Pataki, 1263, (2d Cir.1997) (not 1279 ing that "sex offenders have suffered harm in the public dissemination-ranging aftermath of Smith, 538 U.S. at 100, 123 S.Ct. 1140; see 109, public shunning, picketing, press vigils, also ostra 538 U.S. at 123 at S.Ct. 1156 n. * cism, eviction, (Souter, J., ("I employment, concurring) loss of seriously to threats doubt that violence, attacks, arson"). physical requirements the Act's are 'less harsh than the ..."). occupational sanctions of debarment'. See, eg., Neighbor Stalking Convicted Sex Journar, Arron Beacon 13, 2007, Dec. Offender, 83. Hudson v. States, United 93, 105, EBSCO, (vigi- available at 2W62W62425089428 S.Ct. lantism); Smalley, John R. Ellement & Suzanne Killings Sex Crime Questioned: Disclosure Maine York, Hawker v. New Grom, Registries, Apr. Debate Over Boston Refuel 18, 2006, L.Ed. 1002 Al, at available at 2006 WLNR (vigilantism); Millage, Kira Killer of Hrratp Guilty, Sex Pleads BertmiGnam eg., Hollingsworth, 85. See, Jan Offenders Protesters Hound (Wash.), 10, 2006, 1A, Mar. at available at 2006 Tres, Owner Pet Tamra Jan. Shop, EBSCO, (vigilantism); Carolyn WLNR (de- Starks & available at 2ZW62W62852777149 Long, Self, Family Says, Jeff scribing Abuser Killed community protests regis- that forced Tris, business); co at 1, available at 2005 tered sex May offender to close his Corey (suicide); Buckley, WLNR Kilgannon, Cara Town Threats Violence as Homes Sex for Oct. Times, Suffolk, Cluster N.Y. HEeRrarp, Torn Over Molester's Suicide, Mam Apr. Offenders 23, 2005, 1A, B1, at available at 2005 WLNR at available at 2006 WLNR 17438262 (suicide); MacQuarrie, Brian (recounting neighborhood's Man De- efforts to drive out Offenders, Ramshaw, registrants); Attacks on Sex Crusader Emily Gets Jail 'Sex La- fends Offender' Men, Many Regis- bel Makes No Distinction: For Grom, Term, Boston Dec. 5, 2004, A1, at available try Lasting Devastating Effects, (vigilantism); Has at 2004 WLNR Darras see also Mornings Tewksbury, Richard Consequences Collateral News, Oct. 2006, available at EBSCO, Registration, Sex 21 J. (stating registrant Comteme Crm. 2W62W61689001016 has Offender (2005) (noting study Just multiple jobs employers that in a of 121 lost after learned he was registered Kentucky, Marshall, percent sex offenders in registry); Carolyn on sex offender Tak reported being person, Hands, Times, percent ing harassed in 16.2 the Law into their Own N.Y. assaulted, reported being percent reported 28.2 20, 2004, A12, at available 2004 WLNR Apr. receiving harassing threatening telephone (describing put pressure how residents the same information posting and impos drawers make it could dissemination restricted website; posting has this housing state-sponsored find a to the offender sible but has public access merely improved not employment."8 registrant's infor broadly disseminated however, nega that argues, The state mation, in the written is not some of which (negative emphasizes that Doe effects tive As the Alas the conviction. public record of opportu housing and employment impacts on noted, does "ASORA Appeals ka Court of subject to nities) not if Doe is exist even will per of substantial provide for dissemination result consequences those because ASORA about a information biographical sonal and dissemination not from readily otherwise information, conviction itself. that is not from the sex offender but single governmental from is no Moreover, available that there state asserts any A that recognized Doe directed also source."9 'We that Alaskans evidence and notes sex offenders at convicted they wrath had stated sex offenders several registry website warns the sex offender jobs, forced to move their been had lost to registry information using viewers about residences, threats of vio and received their a criminal act.87 commit registry, followingestablishment lence convictionshad though facts of their even arguments persuasive. these Neither of public record.92 We always been a matter of of information requires release readily public not otherwise harmful effects of part is in therefore conclude Moreover, regulations author available. conviction just from the ASORA stem registra of most ASORA disclosure, ize dissemination and dis registration, but from the any any purpose, "for tion information provisions. semination conjunction with Taken in person." by the state's unpersuaded also We are Act,89 treat Public Records Alaska insufficient evidence that there is assertion information, by the confirmed ment of actually effects have that harmful establish require that the infor regulations, seems affidavit contains in Alaska. Doe's occurred law, By federal publicly available. mation fed from affidavits submitted excerpts statewide, world indeed it is disseminated instances of excerpts recite court. The eral There is wide, website.90 on the state's having diffi losing employment, registrants retaining pub between significant distinction housing employment, culty finding in state file of a conviction paper lic records Safety, Department Public Sex registered 87. See Alaska housing of- to refuse on landlords Kidnapper Central Registration/Child fenders); supra Tewksbury, note at see also Offender http://www .dps.state.ak.us/sorweb/ Registry, respondents re- percent of (noting 42.7 ("Using this site to respon- sorweb.aspx information from percent job ported and 45.3 loss of prosecu- may result in criminal place to live after a crime reported denial of commit loss or dents 21, 2008). tion.") (last registries); July publicly accessible visited being listed on Farkas, Mary Ann Sex Zevitz & Richard G. Of- High 09.050(a). Managing Community 88. 13 AAC Notification: fender Vengeance?, Exacting Further Risk Criminals (2000) (describing ("Unless 40.25.110(a) provided specifically Scr &Law 18 Brnav 89. AS otherwise, public agen- consisting interviews study public of face-to-face of all records ..."). subject throughout public. thirty inspection Wisconsin open sex offenders cies notification, various forms of community reported respondents (''The noting percent 14071(e)(2) that 83 of infor- § release 90. 42 U.S.C. reported of an percent the maintenance ... shall include and 57 mation of residence exclusion of notifica- employment as a direct result containing that is loss such information site Internet on the public instructions tion}. available to the person correcting that a process information 09.050(a); erroneous."); 13 AAC alleges see to be Kan. 86. State Myers, 18.65.087(b). (1996), 1118, 117 denied, 521 U.S. cert. 1043-44 (holding L.Ed.2d (Alas- provision of Kansas State, 985 P.2d Patterson v. dissemination grounds, part App.1999), on other overruled act, applied who to sex offenders A, at 412 n. Doe 92 P.3d before act's effective their crimes committed United clause date, violates A, Constitution). 92. Doe States moving punishment out of the marital home due to fear of shaming; these courts have the effects dissemination would have they concluded that are not.97 But the dis provision Similarly, semination at least resembles the on their families. the Ninth Cir cuit, punishment addressing shaming98 of when Doe's earlier ex registra and the ASORA, challenge noted that the provisions tion and disclosure compara "are record before that court contained evidence supervised ble to conditions of release or 9 community that a sex offender suffered hos parole."9 provisions And these have effects tility damage print and to his business after resulting punishment. like those The registration outs the Alaska sex offender registration fact reporting publicly website were posted distributed and provisions comparable supervised are re on bulletin boards.93 parole supports lease or a conclusion that - punitive. ASORAis historically 2. Sanctions that have punishment been considered Finding 3. of scienter We next "whether [the determine statute's Third, we consider "whether historically [the regarded have] statute] effects been aas 4 punishment."9 expressly play only ASORA does not comes into on a finding of scien-t 00 obligations er."1 The impose historically sanctions have been ASORA are not imposed solelyupon punishment.95 finding considered registra Because of sceienter.101 tion acts such fairly as ASORA are "of re applies ASORA liability also to strict of fenses, origin," cent addressing statutory rape, courts such as issue the law sufficiently determined that there is no deems effectively historical harmful assume equivalent registration to these sci though acts.96 enter.102 But even Some courts have applies offenses, instead considered wheth liability to a few strict it analogous er the acts are to the overwhelmingly applies historical to offenses that re 93. (Stevens, Otte, 259 F.3d at 987-88, rev'd sub dissenting); 111, nom. 123 S.Ct. J., Doe Smith v. Doe, 84, 538 U.S. 123 S.Ct. Yang, 1140, A, at 409; Andrea E. Comment, Punishments, (2003). Historical Criminal L.Ed.2d 164 Punitive Aims Post-Custody and Un-"Civil" Sanctions on Sex Reviving the Ex Post Facto Clause as a v. Mendoza-Martinez, 372 U.S. Kennedy 144, Offenders: (1963). 168, 554, 83 S.Ct. 9 L.Ed.2d 644 Security Bulwark Rights, Personal and Private 1299, (citing U. Cin. L.Rev. 1328 n. 199 Otte, 259 F.3d at rev'd sub nom. Smith v. Community Joan Petersilia, ProBatTion, Corrections: Doe, 123 S.Ct. 155 L.Ed.2d anp (Ox- Parote Intermeniate Sanctions 1, 19-24 (2003). 1998)) (noting supervi- ford that because actual parolees probationers sion of and is minimal due (citing Smith, 538 U.S. at 97, 123 S.Ct. 1140 caseloads, high supervisory only officer about Otte, 989); Pataki, 259 F.3d at see also 120 F.3d probationers comply half probation with re- at 1284. quirements suggesting and therefore that sex of- "may actually fender restrictions exceed those of eg., 97. See, Otte, 259 F.3d at 989, rev'd sub nom. probationers parolees"). and Doe, Smith v. U.S. 123 S.Ct. 1140, 155 (2003). L.Ed.2d 164 Mendoza-Martinez, 372 U.S. at 83 S.Ct. (3d 98. E.B. v. Verniero, 119 F.3d 1077, 1115-19 Cir.1997) (Becker, concurring J., and part Otte, (9th 101. Doe I v. Cir. Smith, dissenting part); see also 538 U.S. at 2001), rev'd sub nom. Smith v. (Ginsburg, 115-16, dissenting). 123 S.Ct. 1140 J., suggests One commentator that dissemination provisions "cause sex offenders to suffer from nonlegal 12.63.100(6)(C)@M); sanctions that have little to do with See AS AS 11.41.434- prevention 438; State, (Alas and have much more to do with reci Hentzner procity 1980) ("Where sanctioning." and a norm may Doron the crime involved be said. se, is, to be reasoning malum in one which Teichman, Sex, Shame, and Law: An Eco Laws, Perspective Megan's nomic 42 Harv J. regard members as condemnable, society on Lrers. awareness of the commission of the act necessar ily carries it wrongdoing. an awareness of (Gins- requirement In such a case the 99. Smith, 538 of criminal intent U.S. at J., burg, dissenting); see upon proof action...."). also is met of conscious of societal others, and reinforcement conviction.103 finding of scienter quire test fo 106-the Mendoza-Moartines norms non-puni imply a do not exceptions few The deterrence.107 on retribution cuses scienter assumption of effect, given tive and dis argues that a rea state the fact that exceptions those are not retributive provisions allowed semination sonable-mistake-of-age defense This factor statutory rape.104 any effects deterrent charge of pro only incidental analy- dissemination weight our little receives therefore regulatory function. visions' punitive effect. sig; weakly implies a spec a broad application to But ASORA's punish- of aims traditional 4. The inherent regardless of their crimes trum of M ment refutes the comparative seriousness or re suggests that such argument and state's oper [the statute's] ask "whether nextWe effects and deterrent of tributive aims the traditional promote ation will regulatory merely deterrence."1 to the statute's incidental punishment-retribution a sex convicted of Every person purpose. Chaney we identified v. Although in State information, same provide the must sentencing-reha offense criminal objectives of four that information publishes and the state isolation, bilitation, of defendant deterrence Hendricks, purpose of III.C.5; norms for the societal mation of v. Kansas Part 103. See infra respect themselves. maintaining for the norms L.Ed.2d subsequently Cha- legislature codified the Id. The statutory (1997) (determining scheme ney factors: sexually violent allowing of commitment civil consider imposing the court shall sentence, part In no punitive, because predators is not the, (1) present of the defendant's seriousness required, since commitment finding is of scienter offenses; in relation to other offense abnormality" on "mental is based determination (2) history of the defendant prior the criminal on criminal rather than "personality disorder" or rehabilitation; likelihood of and the intent). pre- (3) the defendant to to confine the need to the vent further harm public; (Alaska Guest, 104. State (4) and the of the offense circumstances 1978) (''To be to a defense would such refuse the victim the offense harmed extent to which any liability criminal without impose criminal order; safety endangered public 11.41.445(b) intent."). provides: AS mental imposed (5) sentence to be effect of the members of deterring or other the defendant AS 11.41.410- prosecution under a conduct; society future criminal 11.41.440, from law defin- provision a whenever imposed (6) as to be of the sentence the effect being depends upon a victim's ing an offense act of the criminal community a condemnation defense age, an affirmative it is under a certain norms; and of societal a and as reaffirmation alleged offense, of the at the time that, (7) the com- victim and of the the restoration defendant R munity. (1) victim to be believed reasonably AS 12.55.005. age older; verify to measures reasonable undertook Mendoza-Martines, age or older. victim was Appeals has Circuit Court The Third be- interpretation of the distinction explained its 168, 83 S.Ct. U.S. at Mendoza-Martinez, terms: the three tween It vengeance its own sake. is Retribution or solve affect future conduct not seek to does (Alaska 106. State Chaney, realizing "justice." Deter- except any problem 1970). objectives of sen- We there identified negative as a threat measures serve rent tencing: discourage people en- from repercussions meas- into a noncrim- Remedial the offender gaging in certain behavior. [RJehabilitation society, the offend- isolation of inal member to solve hand, seek prob- on the other ures, prevent conduct society criminal er from lem.... confinement, N.J., deterrence during period of Attorney Artway v. Gen. of Cir.1996). (3d after his release offender himself of the treatment, as penological or other confinement 12.63.100(6), of- defines "sex which of the members of other well as deterrence persons fense," applies to indicates that might possess tendencies to- community who offenses, including AS range of of a convicted to that conduct similar ward criminal 11.41.427, degree, a fourth in the offender, sexual assault community condemnation 11.41.434, sexual and AS misdemeanor, class A reaffir- words, other offender, or in individual manner, the same person ly whether undermine ability the Government's engage regulation" effective to deter convicted of a class A misdemeanor or an felony. only unclassified ASORA's differen punitive mine that a law because it also frequency tiation is in the deters. assume and duration of a for sake of discussion digclose.109 person's duty register limiting a statute registration require public ments and any given But at dissemination to the moment extent necessary protect could distinguish list does not those individuals deterrent effect that merely would be inci the state pose high considers to risk to dental non-punitive to its purpose. But society from posing those it views as a low and unlimited risk. ASORA determines regis who must requirements dissemination provide a deter ter particularized based not on a determina rent and goes retributive effect beyond tion of person poses society the risk the any non-punitive purpose essentially and that but rather on the criminal per statute the goals serves the traditional punishment. son violating. was convicted of In Kansas v. Hendricks Application only to criminal be- Court determined that Sexually the Kansas havior Violent Predator Act is not retributive be Under the fifth factor we consider "wheth cause "it does not culpability prior affix er the behavior to which applies [the statute] criminal conduct." That act trig is not already is a crime."1 The fact that a stat gered by a conviction, criminal by but rather applies only ute to behavior already, that is conduct; criminal applies to individuals and exclusively, criminal supports a conclu charged sexually violent offenses but sion that punitive.117 its effects are When may who be responsibilit absolved of criminal analyzing Supreme ASORA the Court assert ty.111 Supreme Court there stated that in ed Smith that this factor was "of little necessary "[aln absence of the eriminal re weight in this case."1 The Court there sponsibility suggests that the State is not stated that conviction necessary is "a begin seeking past retribution for a misdeed." ning point, for recidivism statutory is the But III.C.5, as we in discuss Part ASORA concern."1 recidivism, ie., But if new sex applies only to those specified convicted of misconduct, ual concern, only were the offenses.113 apply just statute would not to convicted sex Moreover, Supreme Smith v. Doe the offenders but to other may individuals who Court noted that the state had conceded that pose society a threat they even if were not "might ASORA erimes," deter future an See, convicted. for example, Washington effect punitive. that would be act, registration Although the upheld by Circuit; the Ninth state has made no similar concession in this it includes sex offenders not guilty- found appeal, significant it is the state there including those incompetent trial, to stand admitted that the same statute on the same guilty those found not insanity, reason of currently facts before us could have deter and those committed as psychopaths sexual rent that, effects. argues The state here sexually predators-as violent well as words, those who are conviected.120 Court's it "would severe regis The Utah degree, abuse of a minor in the first an unclassi- 115. Hudson v. United States, 522 U.S. 93, 105, (ihe felony

fied type felony). most serious (1997). 118 S.Ct. 488, 139 L.Ed.2d 450 109. AS 12.63.020. 116. v. Mendoza-Martinez, Kennedy (1963). 9 L.Ed.2d 644 110. Kansas v. Hendricks, 521 U.S. 346, 362, 117 (1997). 117. Id. Id.; 59-29a02(a), 111. §§ see Kan. Stat. Ann. 59- Smith, 118. 538 U.S. at 123 S.Ct. 1140. 29a03(a) 119. Id. Hendricks, 521 U.S. at 117 S.Ct. 2072. Gregoire, (9th 12.63.100(5). Russell v. Cir.1997); Rev.Copze see also Wast. 4.24.550(1)(c)-(e) 538 U.S. at § 123 S.Ct. words, fundamentally and ASORA In other in constitutionally upheld, act, also tration guilt based judgment of invariably requires a ground on the guilty not those found cludes under the eriminal proof plea incapacity.121 on either of mental the determination therefore It is standard. only concedes, applies ASORA the state As beyond a reasonable a sex offense guilt offenses.122 specified "convicted" to those merely the (or plea), not knowing per a doubt but offenses charged with sex Defendants for recidi potential the conduct fact of such offenses to non-sex plead out who require vism, triggers have to not do simple assault coercion conviction, the criminal it is Because ment. engaged they may have though register even conviction, trig only the eriminal do who as individuals conduct same ASORA, conclude obligations under gers Likewise, convicted even register.123 have to supports the conclusion factor overturned convictions whose defendants punitive effect.127 ASORA insufficiency of evi than other reasons despite register not have guilt do dence of An conduct.124 in the same having engaged non-punitive Advancing interest minor in of a abuse commits sexual who adult whether, in the words next ask pen in sexual by engaging degree the first Court, purpose "an alternative years thirteen under person awith etration rationally con may statute] [the which is overturned conviction whose age,125but 8 We translate for it."12 assignable nected is search, does not illegal an due to advances whether ASORA inquiry an this as require Finally, does register. purpose. ASORA regulatory legitimate, sex of charged with for those non-punitive advancing a viewed as rationally be can they may though sequitted, even but fenses it enacted ASO- When purpo convict, se.129 conduct as in the same engaged that: found legislature RA found even be might sex offenders ed proof. standard under a lesser of reof- civilly (1) high liable risk pose offenders sex custody; release from fending after to individu applies that ASORA is true It are found of or plea either enter als who (2) offend- public from sex protecting 126 do not But we mentally ill." "guilty but interest; governmental primary is a ers seope of to make inclusion read this persons con- (3) privacy interests Washington of the as that the same important are less sex offenses victed dis previously acts and Utah public in interest government's than of of including this class Because cussed. safety; and applying ASORA guilt, again looks fenders about information ill not of certain mentally does release guilty but found to those and the agencies public offenders sex effect. any non-punitive demonstrate repeat may the Court how often No matter 1244, 1251-52 Haun, v. Femedeer 121. Cope Urag have been tests that Cir.2000); manipulate multifactor (10th Axx. also see & n. 3 involving 77-27-21.5(1)({)(v) (2003). wholly cases dissimilar applied in § aspects of these only of these three or two one 12.63.100(5). AS sanctions, persuade me statutory it will never obligations reporting registration and (Alas- P.2d 1019 State, v. Whitehead 123. See sex offenders imposed convicted that are (defendant charged three App.1999) their convic- a result of else as on no one guilty pleaded but who of sexual assault counts punishment. part of their are not tions register because he not have coercion did original.) (Emphasis in ASORA). under offender sex was not convicted 168-69, Mendoza-Martines, 12.63.100(3). U.S. at AS S.Ct. 11.41.434(a)(1). (9th Cir. 979, 991 Otte, 259 F.3d 129. Doe I 12.63.100(3). See AS 2001), Smith nom. rev'd sub 113, 123 S.Ct. U.S. at Smith, 538 127. See L.Ed.2d 164 (Stevens, dissenting): J., publicsafety. general public will assist in protecting the ^[130] vision, but concluded that ASORA is not tion requirements and its dissemination pro in excessive relation to the state's in interest The Ninth Cireuit stated that the state's public safety.136In deciding so it determined non-punitive public interest safety "un Ex "[the Post Facto Clause does not questionably provides indeed, support, preclude a making State from reasonable principal support, for the view that the stat categorical judgments conviction of punitive ute is not for Ex Post Facto Clause specified particular crimes should entail regulatory purposes."1 The Court also stat quences,"1 and that the dura conse ed that ASORA's rational connection to a tion of reporting requirements non-punitive purpose signifi a "[mJost what the Court "passive" called ASORA's cant" factor in its determination that ASORA system notification are not so excessive as to non-punitive in effect.132We likewise con effectively penal.138 clude that ASORA a non-punitive advances interest. The Court stated that the excessiveness inquiry is "not an exercise in determining 7. Closeness of connection of means legislature whether has made the best to the state's interest possible choice problem to address safety seeks remedy. question is whether Finally, we determine regulatory "whether [ASORA] means chosen are reasonable light appears nonpunitiveobjective." excessive relation to the alterna purpose assigned." tive analyzing legislature As the found when enacting factor the Ninth Circuit scope addressed the ASORA, "protecting from sex of subject of individuals to ASORA and the primary fenders is a governmental interest." breadth of its provision; dissemination it de 14 The state certainly has a valid inter termined that ASORAmakes "information as est in addressing just the egregious and to all sex offenders ... any available without highly publicized gave crimes that rise to the restriction any and without regard to wheth Megan's movement,141 Law but also other er poses the individual any future risk."134 crimes of which the repetition risk of The Ninth Cireuit consequently concluded grave harm sufficiently predictable is jus to "non-punitive ASORA's purpose, while tify protections the by afforded ASORA. unquestioned of importance, does not serve inBut the context of our ex ingui- facto to render a statute that is so broad and ry, we have an obligation to determine sweeping non-punitive."13 whether the carry means chosen to legiti out Court also addressed the purposes excessive, mate le., are not close scope magnitude and of registra enough to be non-penal. classified as 1,§ 130. Ch. SLA 1994. 137. Id. at 123 S.Ct. 1140. Otte,

131. 259 F.3d at rev'd 104-05, sub nom. Smith 138. Id. at 123 S.Ct. 1140. v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d (2003). Id. at 123 S.Ct. 1140. Smith, (cit 538 U.S. at 123 S.Ct. 1140 1,§ 140. Ch. SLA 1994. ing 267, 290, Ursery, United States v. (1996)). Megan's Law Megan takes its name from Kanka, seven-year-old girl sexually assaulted 133. Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. and murdered in 1994 near her home in New Jersey. The man convicted of her murder was a who, neighbor par- unbeknownst to the victim's 134. Otte, 259 F.3d at rev'd sub nom. Smith ents, prior had convictions for sex offenses 155 L.Ed.2d against generated children. Her murder a na- tional mandatory registration movement for for sex community offenders and notification. See Id. at 994. Simon, generally Megan's Jonathon Law: Crime Democracy America, and in Late Modern 25 Law & Inourry 103-05, 538 U.S. at 123 S.Ct. 1140. Soc. 1134-35 to threats may pose and scope acts the the same include mitted to here use "means" We conviction avoided who but public imposes the it obligations the and statute the convic charge or whose a lesser pleading can state the and what to it subject those on do not mean overturned. tions were enforcing it. indo must or inclu more the statute making suggest seope is that ASORA's significant is It ex necessarily resolve would sive array of crimes a wide encompasses broad; otherwise changes would such or that issues Moreover, severity.142 greatly vary but unobjectionable, constitutionally by which no mechanism provides ASORA that ASORA illustrate to this feature point state petition can offender sex registered effect. punitive has a obligations of from relief for a court disclosure.143 and that, for obligations continued imposes also ASORA their shorten cannot in rela "Offenders excessive are purposes, post facto ex clearest on period, even safety public notification legitimate state's to the tion conclusive rehabilitation registra determination significant -It is interest. '144 Doe physical proof are de requirements re-registration tion program long are of a treatment completed successfully manding and intrusive148 mandato from early release granted duration.149 him granted court superior A ry parole. authorizing or re provisions Finally, based daughter minor custody his legal informa to disseminate the state quiring successfully he was determination its much broader is ASORA sweeping. are tion risk of very low "a posed rehabilitated that authorizes statute the Connecticut than this evidence Despite re-offending." dissemi to restrict the state order courts regis toDoe rehabilitation, requires ASORA is that dissemination finds if the court nation pub the state requires quarterly ter publi safety and that public required not information personal his licly disseminate likely reveal would information cation life.146 his rest of much victim.150 identity of the further analysis we ex Under down on struck Kansas statute to the closer means chosen statute's conclude Kansas Su by the grounds post facto purpose to the statute's in relation excessive "unrestricted of its because Court preme underinelusive. is also statute because beyond that goes ... [that] access only III.C.5, ASORA in Part discussed As we safety."1 promote necessary to off specified convicted those applies sex rights of balancing the its re areWe excludes It therefore enses.147 vice- their rights of against offenders com may have who individuals quirements 1140 S.Ct. 123 at U.S. Smith, 538 144. 108. supra note 142. See J., dissenting). (Ginsburg, 1140 S.Ct. at U.S. See 143. Otte, nom. Smith sub rev'd 145. ("And meriting J., heaviest dissenting) (Ginsburg, 155 L.Ed.2d Doe, provi- no Act makes my judgment, weight in (2003). of rehabilita- possibility for whatever sion 1, 2009, January ASORA ..."). Beginning tion. 12.63.010(d)(2). AS regis- aof judicial determination for some allows defendant may order a court "the trant's risk: 12.63.100(5). of a violation 2009] of [after January convicted of victim where the 11.41.434 AS 11.41.410 75 and and 70, 71, accompa- notes 148. See supra age years was under the offense nying text. up maxi- monitoring to the subject to electronic person's release length probation on mum accompany- 74 and 72 and to restrict the registration dissemination of the Although dard. six of the factors convince us information to law purposes only enforcement that punitive, ASORA as registration written is and to not make such information available for inherently punitive. and disclosure are not access, public provided court finds that dis- the semination of the information is not Doe, Smith v. U.S. 110-14, 123 S.Ct. required public safety." 54-255(c). for §Id. (2003) (Stevens, 1140, 155 L.Ed.2d J., dis senting); Smith v. Doe, Dep't Conn. U.S. Pub. 114-18, 123 v. of 9-10, (2003) S.Ct. 155 L.Ed.2d (Ginsburg, 123 S.Ct 155 LEd.2d 98 J., (Souter, J., concurring). dissenting). example, For a court may exempt a convict from if his offense was sexual aged contact awith minor (9th Doe I v. Otte, 259 F.3d 979, 993-95 years between age thirteen and sixteen of while Cir.2001), rev'd sub nom. Smith v. Doe, 538 U.S. the offender was years more than three older 155 L.Ed.2d the interpreting of (under practice of threat established compels ASORA Because differently" "no clause facto conduct, post ex be Alaska conviction) affirmative intrusive court now The counterpart.1 re that to its federal equivalent than conduct this cause the test to ASO- that federal applies because judgments, purportedly criminal by quired test information intent-effects "[the case: the disclosed this makes of RA facts without dissemination its broad requires framework analytical and appropriate an provides only to applies limitation, ASORA because directly con decision court's But the here." crime, ASO- because and Supreme of States convicted United those the with flicts be distinguishes meaningfully neither RA to the test same of the application Court's of basis on the offenses of sex classes tween in the concluded have As we statute.2 same to any opportunity gives offenders nor risk for us "no reason presents case this past, risk, ef ASORA's lack of their demonstrate provision constitutional Alaska's interpret conclude therefore punitive. fects differently." post ex Alaska's violates statute the that Alaska's expansion its defends clause.160 The court facto post fac- ex against protections constitutional CONCLUSION IV. the what with "consistent as litigation disclosure, before registration, to have been appear standards Because federal decided Court pro- the the when violate provisions and dissemination by afforded laws post facto ex no against tection announced Court But the Smith Smith." to de- applies as it Alaska Constitution the that standards from the depart intention before crimes their committed who fendants the Men to alter created previously had ASORA, that hold we enacted legislature test. effects multifactor doza-Martines Doe. We 12.63.100(8) applied to cannot "examination its that reasoned Court Smith judgment final REVERSE consequently determina to the leads effects [ASORA's] entry of for state, REMAND by show, much less cannot [Doe] tion Doe. judgment law of the effects proof, clearest a civil to establish intention Alaska's negate Justices, CARPENETI, BRYNER court's Despite scheme."4 regulatory participating. States the United implication Justice, dissenting. FABE, Chief Facto Ex Post the Federal misapplied Court actually broadens Clause, decision today's Justice, dissenting. FABE, Chief post facto Alaska's ex protections conclusion court's disagree with I Constitu the Federal beyond that clause clause facto post the ex violates depar justify its Thus, must court tion. main The court Alaska Constitution. inter practice our established ture multifactor "reliance its tains facto ex federal the Alaska preting use of past our consistent test is effects decision, Today's coextensive. clauses ex resolving state law federal however, so. fails to do firmly past decisions But our claims." the Federal apply under courts Constitution applying ASORA decide that Because the standard against we decline Constitution, adopt protection Doe violates advocates. Doe we do Constitution, the Alaska afforded laws by arguments. Be- process due Doe's not reach conduct requires (Alaska affirmative both cause ASORA 386, 391-92 Coon, 974 State re-registering, (in registering, registrant 1999). most disclosing) dissemination information, not have we do disclosed Doe, Smith 2. See registra- only requiring a statute whether decide L.Ed.2d 164 of other- only for distribution providing tion or crim- offender's from an public information wise (Alaska State, 619 P.2d v. 3. Danks post law. ex facto an have been would inal file 1980). an ex we conclude And because for re- standard same law under post facto 1140. at 4. Alaska under post claims viewing facto ex course, Of "we have authority and, preme Court disposed decision of Danks's necessary, duty when to construe provi claim, federal and we saw "no reason for us sions of the Alaska provide Constitution to to interpret Alaska's provision constitutional greater protections than out of differently." arising those In State v. Anthony, we re the identical federal clauses." For example, jected challenges under the state and federal we have devised sliding-seale our own test to post ex facto clauses to a deprived law that implement "Alaska's stringent more equal certain felons of receiving perma the annual protection standard,"5 which we have held nent fund dividend.15 analysis Our did not "protects right Alaskans' to non-discriminato differentiate between the two clauses and ry treatment robustly more than does the parties' noted agreement "that the ex federal equal protection clause." We have post prohibition facto of the Alaska Constitu held that the state constitution entitles Alas tion is the same as that of the United States jury kans to a trial where the Federal Con Constitution." stitution does not.7 And we have interpreted case, As in this State v. Creekpaum17in "[nljo Alaska Constitution's mandate that volved a sex offender. Creekpaum was person shall put in jeopardy twice for the charged with sexual assault years over five same offense" beyond extend the Federal alleged after the place. assault took At the Constitution's jeopardy protections.9 double time Creekpaum allegedly committed But expanded where we have Alaskans' con offense, his five-year period ap limitations protections stitutional beyond federally re plied. But legislature subsequently ex quired minimums, we have recognized a tended period. In rejecting Creekp- "duty to move forward those areas of aum's challenge to the new period limitations progress constitutional which we view as nec under the state and post federal ex facto essary to development of a way civilized clauses, we relied almost exclusively on Unit of life in Alaska.10 ed States Supreme precedents Court in simi recognized have never protec broader lar cases again and once declined "to con tions under the Alaska post Constitution's ex strue parallel our prohibition- ex facto compared clause as to the Federal Cons I, article section 15-differently from the titution's.11 In State, Danks v. we examined provision." federal an ex challenge to a habitual offender stat case, ute.12 inAs United Finally, Coon, in State v. rejected States Supreme Court rejected had a chal claim that our adoption of new evidentiary lenge to a similar statute under the federal rules for the admission of scientific evidence clause.13 Accordingly,we held that the Su violated "federal and state pro constitutional 5. State, Alaska Civil Liberties Union v. 122 P.3d 722. The Appeals Alaska Court of employed has (Alaska 2005) (Article I, section 1 of the analysis the same for both the Alaska and federal requires Alaska Constitution "equal treatment of facto clauses. Patterson v. State, 985 situated."). similarly those (Alaska P.2d 1007, App.1999), 1011-13 overruled grounds State, other Doe v. 92 P.3d 398 6. State, Health & (Alaska Dep't Soc. Servs. v. Planned 2004). Parenthood Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001). 12. 619 P.2d at 722. Fairbanks, City 7. Baker v. 471 P.2d 401- Burke, 13. Gryger See v. (Alaska 1970). 92 L.Ed. 1683 I, 8. Alaska § Const. art. Danks, 619 P.2d at 722. State, 9. Whitton (Alaska 479 P.2d 309-10 1970). 15. 816 P.2d at 1377-79. Baker, 471 P.2d at 401. Id. at n. 1.

11. See State (Alas- Coon, 974 P.2d 386, 391-92 17. 753 P.2d 1999); at 1140. State v. 816 P.2d Anthony, 1377, 1378 (Alaska 1991); Creekpaum, State v. (Alaska 1988); Id. at Danks, 619 P.2d

1021 prin by the raised threshold higher Our the meet legislation."19 facto post exon hibitions that my opinion, In decisis. stare ciple of analysis of an from followed in Coon decision decisis met. Stare that not been has explanation our threshold precedent federal precedent past to we adhere that differ demands no prohibition state our construe "Iwle 20 the rule clearly convinced "we unless prohibition." federal the ently than longer sound no or is erroneous originally our that no doubt leave decisions These conditions, more that changed of because ex federal state treating the of practice depar from result harm would good than coextensively is settled clauses facto post 23 arguer- Assuming precedent." from ture today, decision court's The precedent. in decision Court's the do the under protections broader recognizing Ex Federal on reliance our upsets Smith of uncertain- Constitution, pall casts a Alaska I remain jurisprudence, Facto Clause Post court decisions. earlier our ty upon prece our from departing unconvineed "does decision that its declares nevertheless result would invalidate to dents any overruling on depend not overrule not alone is Alaska harm. good than more depart court, it does nor this of prior decision pub to this responds legislation passing This court." holding of this past any passed Congress 1994 safety threat.24 lic our language of plain ignores assertion Against Chil Wetterling Crimes the Jacob of the doctrine and alters holdings previous Registration Offender SexuallyViolent dren recognition. beyond decisis stare funding federal ,25 conditions which Act decision prior "a explained have established enforcement law assist to 'changed con of because may be abandoned offender state sex guidelines so have lawof principles if 'related ditions' sex offender Alaska's programs. no rule old left the have as to developed far a nation part of one small forms program doctrine, of abandoned a remnant than more program. regulatory comprehensive wide to be come changed[,] or have so facts [or] gives old rea- analysis robbed have court's differently, Nothing as to in the so seen 21 Perhaps practice application." significant established from our depart rule son clause facto development ex ongoing Alaska's interpreting view could one United Su States law, protections United mirror case federal particular, adherence Our decision Constitution. Smith Court's States preme court automatically, and But condition." "changed proceeded aas has practice judgments for the regard its decision frame our attempt has reflected no makes in this Instead, fails Court court States the United a manner. such dissent. respectfully I Accordingly, "in indeed area. today's decision recognize approach analytical consistent deciding ex approved Constitution." Alaska under claims to overrule has decided court Because Alaska construing the practice

our settled "no differ clause

Constitution's 22it must prohibition," federal than the ently (internal marks quotation at 610 lop, P.2d 721 at 391. 974 P.2d omitted)). at 391-92. Id. union every state legislators in By 1996 Sheehan, Canada, 852 v. Whitney Inc. &Pratt after regulate offenders sex laws enacted had 1993) (quoting Planned (Alaska 1176 P.2d S.Ct. at 123 U.S. 538 Doe, release. their Casey, U.S. v. Penn. Se. Parenthood of Doe, 1140; v. Dep't Pub. Conn. L.Ed.2d S.Ct. L.Ed.2d S.Ct. Coon, at 391-92. (dis- 25. See (Alaska Dunlop, 721 P.2d State 14071). § cussing 42 U.S.C. 1986) Souter, (quoting State grounds Dun 1980), (Alaska on other overruled notes reality different. See seeras much infra jurisdiction.... registered argument sex of the other laws and 85. 11.41.110(a)(3), (B) or a change jobs and residences under AS a crime are free to offenders view of the "ma Anatole France's jurisdiction, calls to mind which law of another similar laws, attempted rich and equality which forbid to commit jestic person of the committed or beg crimes, bridges, sleep poor following under the a law of alike to or similar of the one streets, their bread." Anatore and to steal jurisdiction: the France, another Livy Rep (The Library Modern (i) degree; Tue in the first sexual assault 1917) (1894). appear the mere We cannot allow (ii) degree; assault in the second sexual reality its equal to obscure ance of freedom degree; (iii) a minor in the first sexual abuse of denial.. or (iv) in the second of a minor sexual abuse (Ste- 111, 123 S.Ct. 1140 Smith, 538 U.S. at degree; or dissenting). vens, J., (C) solicitation, or or an crime, attempt, crime, under AS conspiracy commit 12.63.010; (defining fail- 11.56.840 AS AS 70. See law of an- 11.41.434, or a similar 11.41.410, register-which failure to file includes ure to provision under jurisdiction a similar or other address, annually re-register change failure this state. a former law of supply required all quarterly, and failure to 12.63.100(1). AS misdemeanor, class A punisha- information-as $10,000 up year jail by up to one ble .020(a). 12.63.010(d), 74. AS 12.55.135(a). fine); 12.55.035(b)(5); Ef AS AS register January will failure to fective 12.63.010(c). written notice 75. AS failure to file also include change an e-mail or mes- of or establishment identi- saging communication address or internet A), (Doe State, Safety Dep't Pub. 76. Doe 42, § SLA 2008. fier. Ch. 2004); (Alaska Smith v. see also P.3d 84, 111, (Doe A), State, Dep't Pub. 71. Doe v. J., (stat- (2003) (Stevens, dissenting) L.Ed.2d 2004). (Alaska "comparable obligations ing these dur- criminals imposed other convicted duties 72. See id. parole"). supervised ing periods release "aggravated sex offense" as: defines 73. ASORA (Gins- S.Ct. 1140 11.41.100(a)(3), (A) a crime under J., dissenting). burg, jurisdiction, in which law of another similar

Notes

supra notes 149. See 2, 6, 42, §§ facility." Ch. a correctional ing text. provide for as amended even But SLA 2008. speci- the two for risk determination limited this (2001). 54-255(a), (b) § Gen.Srar. See Conn. a court crimes, not authorize does fied to soci- poses risk registrant no determine Myers, Kan. State him of altogether relieve consequently to ety and obligations. disclosure registration and Rather, tims.152 we are determining for ex nonpunitive aims it seeks to advance." purposes 15 whether the means cho Although non-punitive aims protect public sen to consequences have undeniably are legitimate important, to sex offenders that significantly go beyond registration pro dissemination the state's valid public safety, interest visions consequences to sex offenders exclude may pose individuals who equivalent go beyond the state's public interest public threats to safety. Some sex offender safety; we must therefore conclude that the registration employ statutes means that have Alaska statute is excessive in relation to the been held to rationally relate closely state's public interest safety. enough to the state's public interest safety. example, For the Second Circuit concluded 8. ASORA's effect policy notification adopted by the Summing up the effects under the seven Connecticut Office of Adult Probation was factors, we conclude that ASORA's effects "not excessive in relation to purpose its punitive, and convincingly outweigh the enhancing public awareness helping non-punitive statute's purposes and effects. prevent recovering offender from harmful recognize that several of the factors seem apses."15 rel Connecticut certain allows related, closely and that discussion of one sex offenders convicted between October may overlap discussion of another. Nonethe 1988 and "petition June 1999 to the court less it is not the mere number of factors that Department order the Safety of Public conclusion, leads us to our but our assess restrict registration dissemination of the ment of those factors and their relative information to law enforeement purposes weight. Six of those factors lead us to dis only and to not make such information avail agree, respectfully firmly, but with the Su able public access."15 Connecticut also preme analysis Court's and its ultimate con provides certain sex offenders possibility clusion that ASORA penal.157 is not Our avoiding and dissemination decision is consistent with what we consider upon judicial determination that registra to be the compelling comments dissenting tion or dissemination required is not justices in Smith158and with majority safety.155 the Ninth Cireuit Appeals Court of panel "A statute is not punitive that, deemed reversal, before discerned an ex simply because it lacks a facto violationunder federal law.159 perfect close or fit Id. at 1043. minor, than the if the offender age was under the of nineteen at the time of the offense. Conn. 153. Roe v. Adult Prob., 125 F.3d 47, 55 54-251(b)(2001). Office of § Gen.Star. (2d Cir.1997). 84, 103, 156. Smith v. 54-255(c) (2001). § Conn. GenStar. For ex- a sex offender ample, convicted of a sexual of- against who, fense a minor at the time of the offense, age eighteen under the and relat- significance 157. Given the of the state's interest ed to the sex specified offender degree within a here, the opinion author of emphasizes may petition of kindred the court to order re- in his view the result today court reaches 54-255(c)(3). § stricted dissemination. Id. "The does not mean that no sex offender may court Department order the of Public satisfy act could ever Alaska's ex facto stan-

Case Details

Case Name: Doe v. State

Court Name: Alaska Supreme Court

Date Published: Jul 25, 2008

Citation: 189 P.3d 999

Docket Number: S-12150

Court Abbreviation: Alaska