Michael A. McGuire v. Steven T. MarshallMichael A. McGuire v. Steven T. Marshall
MICHAEL A. MCGUIRE,
Plaintiff-Appellant Cross Appellee,
versus
STEVEN T. MARSHALL, DERRICK CUNNINGHAM, JOHN RICHARDSON,
Defendants-Appellees Cross Appellants,
CITY OF MONTGOMERY, et al.,
Defendants-Appellees.
Appeals from the United States District Court for the Middle District of Alabama
D.C. Docket No. 2:11-cv-01027-WKW-CSC
Before JILL PRYOR, ED CARNES, and RIPPLE,* Circuit Judges.
Plaintiff Michael McGuire is required to register as a sex offender under the Alabama Sex Offender Registration and Community Notification Act (“ASORCNA” or the “Act“),
In this lawsuit, Mr. McGuire sued the Alabama Attorney General and others,
In Part I, we discuss the factual background and procedural history of Mr. McGuire‘s challenge to ASORCNA. In Part II, we walk through ASORCNA‘s relevant provisions. In Part III, we identify the applicable standard of review. In Part IV, we address mootness. In Part V, we set forth the “intent-effects” framework used to determine whether the Ex Post Facto Clause prohibits a law‘s retroactive application. In Part VI, we apply this framework to analyze whether the Ex Post Facto Clause bars the retroactive application of the challenged provisions.
I. FACTUAL BACKGROUND
A. Factual History
In 1986, Michael McGuire was convicted in Colorado of: (1) first-degree sexual assault (rape) of his girlfriend “through the actual application of physical force and physical violence” using a knife “to cause submission“; (2) second-degree assault by causing and attempting to cause bodily injury “by means of a deadly weapon, to-wit: a knife and wine bottle“; and (3) menacing by placing another “in fear of imminent serious bodily injury.” At the time of the crime, both Mr. McGuire and his girlfriend were 30 years old. Mr. McGuire served three years in prison and completed one year of parole. After his release from prison, Mr. McGuire spent much of the next 20 years working as a hair stylist and jazz musician in the Washington, D.C. area. During that time, he met a woman with whom he entered a common-law marriage in 2001.
In 2010, Mr. McGuire and his wife decided to move to Montgomery, Alabama, to live with and assist his elderly mother. Upon arriving in Montgomery, Mr. McGuire registered as a sex offender. He learned that he could not live with his mother because her home was too close to a childcare center. Mr. McGuire looked for a compliant home. He asked local law enforcement about the suitability of dozens of homes for rent but was told that ASORCNA prevented him from living at any of those addresses. He and his wife stayed at a motel until their money ran out. The couple briefly stayed with Mr. McGuire‘s brother. But when his brother‘s minor children returned from a vacation, Mr. McGuire had to move out because ASORCNA prevented him from staying overnight with minors present. Unable to find housing, Mr. McGuire began living beneath an interstate overpass. He spent his days at the home where his wife lived and his nights underneath the interstate. Later he did find compliant housing. See infra n.20.
Upon returning to Montgomery, Mr. McGuire also faced difficulties finding a job. The district court found that ASORCNA‘s employment restrictions prevented him from accepting or applying for a number of jobs, including music-related engagements. The court noted that he occasionally performed as a musician at a venue in Montgomery that is more than
Before filing this lawsuit, Mr. McGuire began receiving Social Security disability benefit payments and has continued to receive them since then. He testified that he started receiving those disability benefits after he had confined himself to his house for four years due to agoraphobia and after he had what he describes as a “psychotic break” and “was diagnosed as schizophrenic.” He also receives non-service-related benefit payments from the Veterans Administration for the same mental disabilities. When Mr. McGuire was asked during the bench trial if he was “completely unable to work,” he testified: “I can‘t really answer that question because I—I don‘t—I haven‘t been in a work environment for a while, so I don‘t know what my reactions would be, due to my schizophrenia. I don‘t know if I could—if I could function correctly on a job, but I‘m willing to find out.”3
During the time that he was homeless, Mr. McGuire had to register in person each week. He was required to report in person each week to both the Montgomery County Sheriff‘s Office and the Montgomery City Police Department.4
B. Procedural Background
Mr. McGuire filed this lawsuit naming the Attorney General of Alabama as defendant.5 As relevant to this appeal, he challenged portions of ASORCNA as unconstitutional ex post facto laws.
After a bench trial, the district court entered detailed findings of fact and conclusions of law. In the findings of fact, the
The court‘s conclusions of law addressed the merits of Mr. McGuire‘s ex post facto claims. The court explained that to prevail Mr. McGuire had to establish either that the legislature intended ASORCNA to impose punishment or that the challenged restrictions were sufficiently punitive in purpose or effect to overcome the legislature‘s nonpunitive intent. The court found that in enacting ASORCNA the Alabama legislature expressly intended to create a civil regulatory scheme, not to impose punishment. For most of the challenged restrictions, the district court concluded that Mr. McGuire failed to carry his burden of demonstrating that the restrictions were so punitive in purpose or effect that the legislature‘s nonpunitive intent was overridden. There were two exceptions: ASORCNA‘s dual reporting provisions, which required homeless registrants living in cities to report to both municipal and county law enforcement, and its travel permit requirement, which mandated that registrants living in cities obtain permission from both municipal and county law enforcement before traveling outside the area. The court determined that these two restrictions were so punitive in purpose or effect that the legislature‘s stated intent to create a civil regulation was negated. The district court declared the retroactive application of these two provisions unenforceable under the Ex Post Facto Clause.
Both Mr. McGuire and the Attorney General appealed parts of the district
In addition, the State changed how it implemented ASORCNA‘s requirement that a registrant carry a driver‘s license or state-issued identification card reflecting his status as a sex offender. At the time the district court ruled, the Alabama Law Enforcement Agency (“ALEA“) implemented this requirement by issuing to registrants driver‘s licenses or identification cards with the label “CRIMINAL SEX OFFENDER” appearing in red letters on the face of the license or card. In a different lawsuit, a group of registrants challenged the labeling requirement under the First Amendment. The district court in that case declared that the identification requirement as implemented by ALEA was unconstitutional. See Doe v. Marshall, 367 F. Supp. 3d 1310, 1339 (M.D. Ala. 2019). After that ruling, ALEA changed the designation it used on licenses and identification cards by replacing the words “CRIMINAL SEX OFFENDER” with a code. Since then, ALEA has issued to registrants new driver‘s licenses and identification cards.8
II. ASORCNA‘S REGULATION OF SEX OFFENDERS
We now discuss the relevant restrictions that ASORCNA in its current form imposes on sex offenders in Alabama.9 These measures include: requiring in-person quarterly registration; providing direct notification to the public when a registrant lives nearby; barring registrants from living, working, or volunteering within 2,000 feet of schools or childcare centers; requiring homeless registrants10 to report to law enforcement once a week; and compelling registrants to notify law enforcement before traveling.
A. Registration and Direct Community Notification
ASORCNA requires adult sex offenders,11 individuals who were age 18 or older when they committed a crime defined under Alabama law as a sex offense, to register with law enforcement.
crimes were committed or his or her duty to register arose“). Thus, it has retroactive application for those persons.
ASORCNA requires registrants to report in person to law enforcement on a quarterly basis.
The Alabama legislature imposed the reporting requirement to promote public safety. It explained that reporting creates “constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying,
monitoring, and tracking sex offenders.”
ASORCNA also requires law enforcement to notify community residents about the presence of a registrant in that community. The purpose of community notification is to “protect the community” by “inform[ing] the public of the presence of sex offenders in the community.”
ASORCNA mandates two types of community notification: (1) indirectly through the internet on Alabama‘s public sex offender registry website and (2) directly by
First, law enforcement must maintain a public registry website with information about sex offenders.
The website must include a warning that the information contained on it “should not be used to unlawfully injure, harass, or commit a crime against any person named in the registry or residing or working at any reported address and that any such action may result in civil or criminal penalties.”
Second, ASORCNA requires law enforcement to notify the nearby members of the community directly by mailing or hand delivering flyers about registrants.
B. Residency Restrictions
ASORCNA‘s residency restrictions impose geographic restrictions on where registrants may live and bar them, between the hours of 10:30 p.m. and 6:00 a.m., from places where minors are present.16 See
A registrant may live in an exclusion zone if, after establishing his residence, changes occur to the surrounding area that render the location noncompliant. See
example, if a registrant lives outside an exclusion zone and a new childcare center opens 500 feet away, the registrant generally may stay in his home. In addition, the Attorney General represents to us that the geographic residency restriction permits a registrant to continue living in a residence that he established before ASORCNA‘s effective date unless the registrant was released or convicted of a new offense after ASORCNA‘s enactment. The record supports that this is indeed how the law has been applied in practice.18
Beyond the geographic residency restriction, ASORCNA prohibits a registrant from “conduct[ing] an overnight visit with a minor” unless the registrant is the parent, grandparent, stepparent, sibling, or stepsibling of the minor.
C. Employment Restriction
ASORCNA limits where registrants may work or volunteer. The Act bars registrants from “accept[ing] or maintain[ing]
Like the residency restrictions, the Alabama legislature enacted the employment restriction to “further[] the primary governmental interest of protecting vulnerable populations,
particularly children.”
D. Homeless Registration Requirement
Registrants who are homeless must report to law enforcement far more frequently than registrants who have fixed residences. Homeless registrants must report 56 times a year because, in addition to the quarterly reports required of all registrants, they must make weekly reports to law enforcement.
The Alabama legislature required homeless sex offenders to report more often than other registrants because of “their mobility,” finding that more frequent registration would protect the public.
E. Travel Notification Requirement
The Act requires registrants to notify law enforcement when traveling. Before leaving his county of residence for three or more consecutive days, a registrant must report to the county sheriff and “sign a travel notification document.”
III. STANDARD OF REVIEW
Because Mr. McGuire appeals the district court‘s judgment entered after a bench trial, “we review the district court‘s conclusions of law de novo and the district court‘s factual findings for clear error.” Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009).
IV. MOOTNESS
Before turning to the merits of Mr. McGuire‘s claims, we must address whether any of Mr. McGuire‘s claims are moot. As we noted above, while this appeal was pending, the Alabama legislature amended ASORCNA, and ALEA changed the way it implemented ASORCNA‘s identification-labeling requirement. See supra Section I-B.
The Constitution‘s “cases” and “controversies” requirement “subsists through all stages of federal judicial proceedings.” Lewis v. Contl Bank Corp., 494 U.S. 472, 477 (1990). “[I]t is not enough that a dispute was very much alive when [the] suit was filed.” Id. “The parties must continue to have a personal stake in the outcome of the lawsuit.” Id. at 478 (internal quotation marks omitted). Otherwise, we lack jurisdiction.
When a plaintiff challenges a law as unconstitutional and seeks only declaratory and injunctive relief, as Mr. McGuire does here, a subsequent change to the law or relevant policy can moot his claims. See Crown Media, LLC v. Gwinnett Cnty., 380 F.3d 1317, 1324 (11th Cir. 2004); Jews for Jesus, Inc. v. Hillsborough Cnty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). In a case like this one involving multiple challenges, the entire case becomes moot only when the superseding statute removes all challenged features of the law. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1342-43 (11th Cir. 2004). Challenges to individual features may become moot, however. See Crown Media, 380 F.3d at 1324.
Whether a defendant‘s voluntary cessation of conduct moots a claim is subject to a “stringent” test. Coral Springs, 371 F.3d at 1328 (internal quotation marks omitted). But we give “governmental entities and officials . . . considerably more leeway” than private parties. Id. at 1328-29. The repeal or amendment of a statute or policy generally will moot a challenge unless there is a “substantial likelihood” that the challenged statute or policy will be reenacted or reinstated. Id. at 1329; Jews for Jesus, 162 F.3d at 629.
We agree with the parties that amendments to ASORCNA have not mooted Mr. McGuire‘s entire case. Some of the challenged provisions—the residency and employment restrictions, the homeless registration requirement, the travel notification requirement, and community notification—remain in effect. Accordingly, we address the merits of these claims based on ASORCNA as it currently exists. See Naturist Socy, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992).
But Mr. McGuire‘s objections to other requirements of ASORCNA are moot. These include challenges to the dual reporting requirements for city-dwelling registrants who are homeless or plan to travel. After the district court declared these requirements unconstitutional, ASORCNA was amended to remove those particular dual reporting requirements. Mr. McGuire does not contend that there is a substantial likelihood that those dual reporting provisions will be reenacted;
Mr. McGuire‘s challenge to the identification-labeling requirement also is moot. Under ASORCNA, a registrant must carry a valid driver‘s license or other identification card issued by ALEA.
Given ALEA‘s policy change, Mr. McGuire‘s challenge is moot. ALEA ceased using the “CRIMINAL SEX OFFENDER” label after a district court in another case declared it unconstitutional, and the Attorney General did not appeal that decision. See Doe, 367 F. Supp. 3d at 1339. We presume that ALEA will not reinstate the policy. Therefore, Mr. McGuire‘s challenge to the identification-labeling requirement is moot. See Coral Springs, 371 F.3d at 1328-29.
To recap: the part of Mr. McGuire‘s appeal challenging the identification-labeling requirement is moot. Also moot is the Attorney General‘s cross-appeal challenging the district court‘s order striking the dual reporting requirements for homeless registrants and for travel notification. As a result, we will vacate the district court‘s judgment as to those requirements and remand with directions to dismiss as moot Mr. McGuire‘s claims challenging them. See CIA v. Holy Spirit Assn for the Unification of World Christianity, 455 U.S. 997, 997 (1982); Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979).20
V. THE LEGAL FRAMEWORK FOR EVALUATING EX POST FACTO CLAIMS
The Constitution forbids states from “pass[ing] any . . . ex post facto
Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137-38 (1810).21 Because the Ex Post Facto Clause prohibits the retroactive application only of laws imposing punishment, a statutory scheme that is civil and regulatory in nature rather than criminal may apply retroactively without violating the Constitution. See Collins v. Youngblood, 497 U.S. 37, 43 (1990); United States v. W.B.H., 664 F.3d 848, 852 (11th Cir. 2011).
To show entitlement to relief under the Ex Post Facto Clause, Mr. McGuire must establish that the challenged provisions in ASORCNA are criminal in nature. To determine whether a law is criminal in nature, we apply a two-part “intent-effects” test. See Smith v. Doe, 538 U.S. 84, 92 (2003). In the first step of the inquiry, we ask whether the legislature intended to impose punishment. Id. If the legislature intended to impose punishment, the inquiry ends, and the statutory scheme is punitive. Id. If the intent of the legislature was to create a civil and nonpunitive scheme, we proceed to the second step and ask whether the statutory scheme is “so punitive either in purpose or effect as to negate” the legislature‘s intent to deem it civil. Id. (internal quotation marks omitted). The Supreme Court has cautioned, “[b]ecause we ordinarily defer to the legislature‘s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. (emphasis added) (internal quotation marks and citation omitted). We discuss each step of the intent-effects analysis below.
A. The Intent Analysis
At the first step in our analysis, we ask “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for [a civil or criminal] label.” Smith, 538 U.S. at 93 (internal quotation
When the legislature states in a statute‘s text that the objective of the statutory scheme is to protect the public, it indicates an exercise of the State‘s power to protect the health and safety of its citizens and evidences an intent to enact a civil regulatory scheme. See id. at 93-94. In Smith, a group of sex offenders challenged Alaska‘s statute that required sex offenders to register with law enforcement and made much of the registration information public. Id. at 90-91. The plaintiffs claimed that retroactive application of the statute violated the Ex Post Facto Clause. Id. at 89. Under the Alaska law, individuals who had committed sex offenses were required to register with local law enforcement either quarterly for life or annually for fifteen years, depending on the number and the seriousness of their prior sex offense convictions. Id. at 90. The law also required the State to maintain a publicly available registry of sex offenders, which it made available on a website. Id. at 90-91.
The Supreme Court concluded that the Alaska legislature intended the registration and community notification scheme to be civil. Id. at 93. The Court explained that the statute included a finding that sex offenders posed a high risk of reoffending and identified protecting the public as the primary governmental interest behind the law. Id. The Court accepted these statements on their face as sufficient to indicate that the legislature intended to create “a civil scheme designed to protect the public from harm.” Id. (alteration adopted) (internal quotation marks omitted). It stated that the “imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective and has been historically so regarded.” Id. (internal quotation marks omitted).
The Court rejected the registrants’ argument that other features of the statute showed that the legislature intended it to be punitive. See id. at 93-94. The registrants argued that the codification of the registration provisions in the state‘s criminal procedure code showed a legislative intent to punish. Id. The Court acknowledged that the placement of the provisions in the criminal procedure code could be probative of the legislature‘s intent. Id. at 94. But it found this placement “not dispositive” because the “location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Id. The Court thus determined that “[t]he partial codification” of the registration provisions in the criminal procedure code was insufficient “to support a conclusion that the legislative intent was punitive.” Id. at 95.
B. The Purpose or Effect Analysis
In the second step of the inquiry, we “examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State‘s intention to deem it civil.” Smith, 538 U.S. at 92 (alteration adopted) (internal quotation marks omitted). To determine whether a regulatory scheme is “so punitive” in purpose or effect when applied retroactively, we consider several factors that the Supreme Court originally adopted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and later applied in the ex post facto context, see Smith, 538 U.S. at 97. Mendoza-Martinez directed us to consider:
whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.
Smith, 538 U.S. at 97.22 These factors, which were “designed to apply in various constitutional contexts,” are “neither exhaustive nor dispositive” and instead function as “useful guideposts.” Id. (internal quotation marks omitted). Because courts “ordinarily defer to the legislature‘s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Id. at 92 (internal quotation marks and citation omitted). The Supreme Court has described this as a “heavy burden.” Hendricks, 521 U.S. at 361. As our sister circuit has observed, “[t]his is a challenging standard for plaintiffs.” Hope v. Commr of Ind. Dept of Corr., 9 F.4th 513, 530-31 (7th Cir. 2021) (en banc).
As we apply the listed factors, Smith, following Mendoza-Martinez, commands that we consider the challenged statutory scheme in its “necessary operation.” Smith, 538 U.S. at 97. Courts generally use one of three distinct frameworks to review a constitutional challenge to a statutory provision, treating it as an as-applied, a facial, or a quasi-facial challenge. After considering Smith, we conclude that “necessary operation” review does not fit neatly into any of these frameworks. Let us explain why.
In an as-applied challenge, a plaintiff seeks to vindicate only her own constitutional rights. Jacobs v. Fla. Bar, 50 F.3d 901, 906 (11th Cir. 1995). In evaluating an as-applied challenge, a court “addresses whether a statute is unconstitutional on the facts of a particular case” or in its application “to a particular party.” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009) (internal quotation marks omitted). By contrast, in a facial challenge, a plaintiff seeks “to invalidate a statute . . . itself and to vindicate not only her own rights “but also those of others who may be adversely impacted by the statute.” DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1262 (11th Cir. 2007) (internal quotation marks omitted). A plaintiff who brings a facial challenge “bears the burden of proving that the law could never be applied in a constitutional manner.” Id. To prevail, the plaintiff “must establish that no set of circumstances exists under which the [statute] could be valid.” Am. Fedn of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (internal quotation marks omitted). In a “quasi-facial” challenge, the plaintiff contends that the law cannot be constitutionally applied to a defined subset of people the law covers, which includes herself. Id. To prevail in a quasi-facial challenge, he must satisfy the standard for a facial challenge to the extent that his claim “reach[es] beyond
At first blush, Mr. McGuire appears to have brought an as-applied challenge because in his complaint he sought to vindicate his individual rights alone through a determination that the defendants had applied an ex post facto law to him. He did not ask the court to provide relief from ASORCNA‘s provisions to any other registrants. But an ex post facto challenge is different: we do not review it as we would an as-applied claim, where we focus exclusively on a law‘s application to a particular party. See Seling v. Young, 531 U.S. 250, 263-65 (2001).
In Young, the plaintiff challenged his confinement under a state law that authorized the civil commitment of sexually violent individuals who suffered “from a mental abnormality or personality disorder” that made them “likely to engage in predatory acts of sexual violence.” Id. at 253. Shortly before Young completed his prison sentence for a sex crime, he was civilly committed. Id. at 255-56. After years of confinement, he filed a federal habeas petition claiming that his continued detention violated the Ex Post Facto and Double Jeopardy Clauses. Id. at 258. He alleged that the confinement statute was punitive as applied to him because of the length of time he had been confined and the conditions of his confinement, which were more restrictive than those placed on other civil commitment detainees. Id. at 259. The Ninth Circuit concluded that Young had adequately alleged the law was punitive as applied to him and remanded for further proceedings. Id. at 260.
The Supreme Court rejected the Ninth Circuit‘s conclusion that Young “could raise an ‘as-applied’ challenge to the [statute] on ex post facto grounds.” Id. at 262. It explained that a court may not evaluate the “civil nature of an Act by reference to the effect that Act has on a single individual.” Id. at 262; see also Flemming v. Nestor, 363 U.S. 603, 614 (1960) (noting that a civil law is “not punishment even though it may bear harshly upon one affected“). The Court warned that considering the effect of a law on only a single individual was “workable” because such an analysis would “never conclusively resolve whether a particular scheme is punitive.” Young, 531 U.S. at 263. Young makes clear that an ex post facto claim cannot be treated as an as-applied challenge. See id. at 262-63; Does v. Wasden, 982 F.3d 784, 791 (9th Cir. 2020) (explaining that ”ex post facto claims based on the punitive effect of purportedly civil statutes cannot be construed as ‘as-applied’ challenges“).
Nor do ex post facto claims fit the frameworks used to review facial or quasi-facial challenges. In Smith, after concluding that the legislature intended to create a civil scheme, the Supreme Court considered whether Alaska‘s registration and community notification provisions were sufficiently punitive in effect to override the Alaska legislature‘s expressed intent. See 538 U.S at 97. In applying the Mendoza-Martinez factors, the Court did not use the words “facial” or “quasi-facial,” and it did not inquire whether there was at least one sex offender to whom the registration or notification provisions could retroactively be applied without violating the Constitution. Id. at 97-106. Instead, the Court‘s reasoning reflects that it considered the effects of the registration and notification provisions as they were generally felt by those who were subject to them. See id. at 100 (evaluating whether the challenged law imposed an affirmative disability or restraint, a Mendoza-Martinez factor, by looking for evidence that the statutory provisions “led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords“).
Regardless of how the framework is described, we can distill that a plaintiff has a “heavy burden,” Hendricks, 521 U.S. at 361, when seeking to override a legislative expression of intent that a challenged provision is civil, and “only the clearest proof will suffice” to meet that burden, Smith, 538 U.S. at 92.23 We
understand that a plaintiff cannot carry his heavy burden by demonstrating the law‘s effects only as to him. At the same time, a plaintiff need not satisfy the standard for a facial or quasi-facial challenge, which would require a showing that the law could never be applied retroactively in a constitutional manner.
VI. ANALYSIS OF ASORCNA‘S CHALLENGED PROVISIONS UNDER THE INTENT-EFFECTS TEST
At last, we apply the intent-effects test to determine whether ASORCNA is civil or punitive. Because we conclude that the Alabama legislature intended to enact a civil legislative scheme, we must assess whether Mr. McGuire has shown by “the clearest proof” that ASORCNA‘s challenged provisions are so punitive in purpose or effect as to override the Alabama legislature‘s stated intent to enact a civil regulatory scheme. See Smith, 538 U.S. at 92. We hold that he has failed to meet that heavy burden. See Hendricks, 521 U.S. at 361.
A. The Alabama Legislature Intended to Create a Civil, Nonpunitive Scheme
We begin by looking to the Alabama legislature‘s intent. In its legislative findings, the legislature explained that it had enacted the employment and residency restrictions along with the “monitoring and tracking” and community notification provisions to “further[] the primary governmental interest of protecting vulnerable populations, particularly children.”
Mr. McGuire argues that despite the Alabama legislature‘s expressed intent, before turning to the Mendoza-Martinez factors we should infer from the structure of ASORCNA that the legislature intended the scheme to be punitive because the statute is codified in Alabama‘s criminal procedure code and imposes criminal penalties on registrants who violate its provisions. He also argues that a canon of statutory construction indicates that the Alabama legislature had a punitive intent. But neither the structure of the Act nor the application of the canons of construction reveals a punitive intent.
We are not persuaded by Mr. McGuire‘s codification argument. Even though a state legislature‘s decision to codify a statutory scheme in its criminal code may indicate a legislative intent to enact a punitive scheme, Smith tells us that when the legislature stated expressly in the statute that it intended the legislative scheme to have a nonpunitive objective, the location of the statutory provisions alone is insufficient to conclude otherwise. Id. at 94-95. We acknowledge that Mr. McGuire‘s codification argument is somewhat stronger here than the registrants’ argument in Smith because all (not just part) of ASORCNA is codified in Alabama‘s criminal procedure code. But Smith‘s reasoning leads us to reject this argument. Id. As the Court pointed out, “[i]nvoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive.” Id. at 96.
Mr. McGuire‘s related structural argument, that the legislature intended ASORCNA to be punitive because violations of it are criminal, is foreclosed by our decision in W.B.H. In W.B.H., we considered whether Congress intended SORNA, the federal statute requiring in-person sex offender registration, to be civil or punitive. Id. at 854. We rejected the argument that Congress implicitly intended to create a punitive scheme by imposing a criminal penalty for violating the registration requirement because “civil regimes may impose criminal penalties for violations of their regulatory requirements.” Id. Given Congress‘s statement that the objective of the statute was to protect children from sex offenders, we held that Congress intended to enact a civil, nonpunitive scheme despite making failure to register a crime. Id. at 854-55. W.B.H. dictates our conclusion that the Alabama legislature intended ASORCNA to be civil even though the statute imposes criminal penalties on registrants who fail to comply with its provisions.
Mr. McGuire‘s next argument is that we should conclude the Alabama legislature intended the residency and employment restrictions to be punitive based on the expressio unius est exclusio alterius canon of construction. The legislature specified that the registration, notification, monitoring, and tracking requirements were not intended to punish sex offenders without mentioning the residency and employment restrictions in that particular sentence, though they are addressed in the same paragraph.
canon, we must infer that the legislature intended the omitted residency and employment restrictions to be punitive. We cannot agree.
Under this canon of construction, “when a legislature has enumerated a list or series of related items, the legislature intended to exclude similar items not specifically included in the list.” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1193 (11th Cir. 2011). But the canon “can be overcome by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013) (internal quotation marks omitted).
We reject Mr. McGuire‘s argument because the expressio unius canon is overcome here. In context, ASORCNA‘s exclusion of the residency and employment restrictions from the list of provisions that the legislature stated in one sentence were intended “not to punish” does not signal that it intended for them to be punitive.
B. Mr. McGuire Failed to Establish by the Clearest Proof that the Challenged Restrictions Are Sufficiently Punitive to Override the Legislature‘s Intent
Having determined that the Alabama legislature intended
We first consider whether Mr. McGuire has established by the clearest proof that
a. Resemblance to a Traditional Punishment
Mr. McGuire argues that the residency and employment restrictions, which jointly prohibit registrants from residing, working, or volunteering within a 2,000-foot radius of any school or childcare facility in Alabama, sufficiently resemble the traditional punishment of banishment. We are not convinced.
With the first factor, we consider whether the statutory scheme imposes what has been regarded in our history and tradition as punishment. This type of “historical survey can be useful because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition, so that the public will recognize it as such.” Smith, 538 U.S. at 97. But a statutory restriction need not be identical to a traditional punishment for this factor to be satisfied. The relevant question is whether the challenged provision sufficiently “resemble[s]” or is “analogous” to a historical and traditional form of punishment. Id.
at 97, 99; see also W.B.H., 664 F.3d at 855 (explaining that we consider whether a restriction “resemble[s] historical and traditional forms of punishment“). The amount of resemblance required must be something more than “initial resemblance.” See Smith, 538 U.S. at 98 (“Any initial resemblance to early punishments is, however, misleading. Punishments such as whipping, pillory, and branding inflicted physical pain and staged a direct confrontation between the offender and the public. Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information.“).
The question we face here is whether the residency and employment restrictions bear a sufficient resemblance to the traditional punishment of banishment. Banishment dates back more than 4,000 years. See Wm. Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 New. Eng. J. on Crim. & Civ. Confinement 455, 459 (1998). It is a form of punishment contained in the Code of Hammurabi, Mosaic law, the Old Testament Book of Esther, the Laws of Manu, and the T‘ang Code. Id. at 459-60. It became most familiar to Americans in the early 1700s, when the United Kingdom passed the Transportation Act of 1718 and banished around 50,000 of its criminals to America. Id. at 461-62.
As its history reflects, banishment punishes by “expell[ing]” a person “from the community.” Smith, 538 U.S. at 98. Sometimes it has been referred to as “exile, deportation, [or] relegation.” United States v. Ju Toy, 198 U.S. 253, 269 (1905) (Brewer, J., dissenting). Whatever the name, it was considered a punishment of the “severest sort.” Id. at 273. Those who suffered it could “neither return to their
Although the residency and employment restrictions limit where registrants may live or work, we hold that the restrictions do not sufficiently resemble the traditional punishment of banishment to be considered punitive. Registrants are not totally prohibited from entering the exclusion zones that
Mr. McGuire nevertheless argues that the residency and employment restrictions resemble banishment because they “effectively” bar registrants from the City of Montgomery. Appellant‘s Br. at 17. We assume for purposes of this appeal that restrictions prohibiting registrants from entering exclusion zones for some, but not all, purposes could in some circumstances resemble banishment. But Mr. McGuire has not shown that
In arguing that the residency and employment restrictions effectively cast registrants out of Montgomery, Mr. McGuire points to two categories of evidence. First, he points to evidence about the difficulties he faced in finding a home or job outside the exclusion zones. Second, he points to evidence supporting the district court‘s finding that the residency and employment restrictions excluded registrants from more than 80 percent of the housing stock and jobs in Montgomery.26
Mr. McGuire‘s evidence about his individual circumstances and the particular difficulties that he faced in finding compliant housing and work outside of the exclusion zones does not establish that the residency and employment restrictions resemble banishment. In relying on this evidence, Mr. McGuire effectively treats his ex post facto claim as an as-applied challenge in which he can establish a constitutional
Setting aside evidence of the restrictions’ effects on Mr. McGuire personally, we consider his other evidence. He argues that the residency and employment restrictions effectively cast registrants out of Montgomery because they make approximately 80 percent of the housing stock and 85 percent of the jobs off limits to registrants.
The district court found that the residency and employment restrictions seriously limit registrants’ housing and employment options in Montgomery, and these findings are not clearly erroneous given the evidence in the record. But even so, we cannot say that Mr. McGuire established that the restrictions are so severe that they resemble banishment and effectively cast registrants out of the community. The evidence of record demonstrates that registrants have remained able to find housing and jobs in Montgomery. As the district court found, of the approximately 430 registrants in Montgomery, only three were homeless. This means that more than 99 percent of the individuals required to register in Montgomery were able to find housing. Approximately half of the registrants in Montgomery were able to find jobs. And of the half who were not working, the district court explained that some were not actively seeking work (perhaps because they were retired, attending school, or physically unable to work). The question is not whether there are houses or jobs off-limits to registrants because of the exclusion zones; the question is whether there are houses or jobs sufficiently open to them notwithstanding the exclusion zones. Obviously there are, and Mr. McGuire does not point to any evidence that the available houses or jobs are so undesirable that they should not be counted.
Nothing in
Registrants may enter the exclusion zones for any purpose except residency or employment there, so long as they do not exceed the specified frequency and duration limits. Mr. McGuire‘s evidence about the restrictions’ effects on housing and employment prospects for registrants does not establish that registrants are effectively cast out of Montgomery in a way that resembles banishment.27
We next ask whether the residency and employment restrictions impose an affirmative disability or restraint. We accept, and the Attorney General seems to concede, that these restrictions impose some affirmative disability or restraint by limiting where registrants may live or work.
In considering whether the legislative scheme imposes an affirmative disability or restraint, we ask “how the effects of the [law] are felt by those subject to it.” Smith, 538 U.S. at 99-100. If the restraint imposed is only “minor and indirect, its effects are unlikely to be punitive.” Id.
In Smith, the Court concluded that Alaska‘s registration and notification scheme imposed no affirmative disability or restraint. The Court began by noting that because the scheme imposed no physical restraint, it did not “resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.” Id. The Court further concluded that the scheme did not impose any other type of affirmative disability or restraint. It explained that Alaska‘s scheme “[did] not restrain activities sex offenders may pursue” and left them “free to change jobs or residences,” meaning they could “live and work as other citizens.” Id. at 100-01. The Court determined that the record contained no evidence that the Alaska Act had “led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords.” Id. at 100.
In this case, the district court found that
c. Traditional Goals of Punishment
Mr. McGuire argues that the residency and employment restrictions are punitive because they further two traditional goals of punishment: deterrence and retribution. But the restrictions do not have such a strong deterrent or retributive effect that it renders them punitive.
Whether the statutory scheme “promotes the traditional aims of punishment” is the third factor the Supreme Court considered in Smith. 538 U.S. at 97. The traditional aims, or theories, of punishment are deterrence and retribution. See Hudson v. United States, 522 U.S. 93, 101 (1997).
The deterrence theory of punishment refers to “the prevention of criminal behavior by fear of punishment.” Deterrence, Black‘s Law Dictionary (10th ed. 2014). The Supreme Court‘s decision in Smith tells us little about how to determine whether a statutory scheme furthers deterrence. Alaska conceded that its registration and notification scheme promoted deterrence, so the Court did not need to decide the question. Smith, 538 U.S. at 102.
The residency and employment restrictions promote the goal of deterrence, Mr. McGuire contends, by imposing an additional penalty for past sex offenses and thus preventing future crimes. We accept that the restrictions in some sense function as a deterrent by preventing future crime. As the statutory text reflects, the Alabama legislature intended the restrictions to protect children by preventing future sex offenses, suggesting that the legislature understood the restrictions would prevent, or deter, future crimes. See
Even though the residency and employment restrictions have some deterrent effect, we cannot say that they are so punitive that they override the legislature‘s intent to enact a civil scheme. The registrants in Smith pointed to the concession that Alaska‘s scheme promoted deterrence to argue that the law was punitive. But the Court rejected the argument as “prov[ing] too much.” Smith, 538 U.S. at 102. Because “[a]ny number of governmental programs might deter crime without imposing punishment,” the Court cautioned, “[t]o hold that the mere presence of a deterrent purpose renders such sanctions criminal would severely undermine the Government‘s ability to engage in effective regulation.” Id. (alteration adopted) (internal quotation marks omitted).
The retribution theory of punishment reflects that it is “fitting and just that one who has caused harm to others should himself suffer for it.” Wayne R. LaFave, Substantive Criminal Law § 1.5(a)(6) (2d ed. 2003). “A statute is retributive if it is intended to express condemnation for a crime and to restore moral balance.” Shaw, 823 F.3d at 571.
Mr. McGuire argues that the residency and employment restrictions advance the goal of retribution because the restrictions “are not tailored to the crime, the offender, the victim, the length of time since the
The residency and employment restrictions in
The fact that the statutory scheme may have had a retributive effect did not convince the Supreme Court in Smith that the scheme was so punitive in effect that it overrode the legislature‘s civil intent. 538 U.S. at 102. Under Alaska‘s registration scheme, the scope of a registrant‘s reporting requirement depended solely on the nature of his underlying crime or crimes. A person who committed a single, non-aggravated sex crime was required to register annually as a sex offender for 15 years. Id. at 90. But a person who committed an aggravated sex offense, or two or more sex offenses, was required to register quarterly as a sex offender for life. Id. at 102. Because the duration of the duty to register depended on the nature of the sex offender‘s underlying crime rather than an individualized assessment of the risk he posed, the Ninth Circuit held that Alaska‘s registration requirement had a retributive purpose and was punitive in effect. Id.
The Supreme Court disagreed. It acknowledged that the Alaska statute differentiated among registrants based on the nature of the underlying criminal conduct—whether the offense was aggravated or repeated. Id. Still, the Court determined that the Ninth Circuit “was incorrect to conclude that the Act‘s registration obligations were retributive.” Id. The Court explained that the registration requirement was “reasonably related to the danger of recidivism” in a way that was “consistent with the regulatory objective.” Id. The Court also recognized: “The legislature‘s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class.” Id. at 103. “The risk of recidivism posed by sex offenders is frightening and high.” Id. (internal quotation marks omitted).
Although Alabama imposes the restrictions on registrants as a class without making individualized risk assessments, following Smith, we conclude that “[t]he Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Id. As we explain below, the restrictions have a rational connection to a nonpunitive purpose and are not excessive.
d. Rational Connection to a Nonpunitive Purpose
We next consider whether the residency and employment restrictions lack a rational relationship to a nonpunitive purpose. This inquiry is a most—if not the most—significant factor. Smith, 538 U.S. at 102.28 In Smith, the Supreme Court held that this factor was satisfied
The Attorney General argues that the residency and employment restrictions protect public safety because (1) sex offenders are likely to commit future offenses against children, and (2) the restrictions prevent future sex offenses against children by keeping registrants away from children. Mr. McGuire disagrees and says that the record evidence established that sex offenders have lower recidivism rates than the Attorney General suggests and that creating zones of exclusion does not actually protect children from future sex crimes. Importantly, though, with respect to this factor, the question is not whether the weight of the evidence shows that sex offenders are likely to recidivate or whether residency and employment restrictions in fact prevent future sex crimes. Instead, our inquiry is limited to whether it would be rational for a legislature to draw these conclusions. Given the narrow scope of our inquiry, we find a rational connection to a nonpunitive purpose here.
To begin, we conclude it was rational for the Alabama legislature to conclude that sex offenders pose a risk of committing future sex crimes against children. The Attorney General points to research in the record showing that sex offenders generally pose a greater threat of committing future sex crimes than the general population does, including research showing that sex offenders are four times more likely than non-sex offenders to be rearrested for a sex crime after release from prison.
Mr. McGuire responds that social science research in the record indicates that sex offenders may have lower recidivism rates than previously thought. But we need not resolve this dispute about the relative rate of recidivism for sex offenders. Again, to apply this factor, we simply ask whether it was rational for the Alabama legislature to conclude that sex offenders are more likely than the general population to commit future sex crimes. And based on evidence in this record, we cannot say that it was irrational.
Mr. McGuire also argues that the residency and employment restrictions lack a rational relationship to the State‘s legitimate purpose because, he asserts, registrants whose previous crimes involved adult victims are unlikely to commit future sex offenses against children. Record evidence reflects, however, that sex offenders are not specialists with respect to the gender and age of their victims. This is not to say that sex offenders whose prior offenses involved adults pose the same risk of committing future sex offenses against minors as do sex offenders whose prior offenses involved minors. But, again, because there is some evidence that adult sex offenders pose a greater threat to children than does the general population, we cannot deem irrational the Alabama legislature‘s conclusion that children are protected by restraints on sex offenders whose previous victims were adults.
Next, we consider whether residency and employment restrictions are a reasonable way to protect children from future sex offenses. The assumption underlying these restrictions is that limiting registrants’ access to public areas that children frequent will reduce crime. The Attorney General introduced into evidence a study showing that removing registrants from
The Attorney General presented evidence showing that residency and employment restrictions reduce the risk of future crimes, and we afford great deference to the Alabama legislature‘s statement in
e. Excessiveness
The final factor requires us to consider whether Mr. McGuire has met his burden to show that
On appeal, Mr. McGuire argues that the residency and employment restrictions are excessive for three reasons: (1) they apply to all registrants for life; (2) other state laws are less severe; and (3) the restrictions caused Mr. McGuire to be homeless and unable to find a job. After considering these arguments, we conclude that Mr. McGuire has not carried his burden.
First, Mr. McGuire argues that the residency and employment restrictions are excessive because they apply to registrants for life. We understand Mr. McGuire to be saying that the restrictions are excessive because they apply to all registrants as a class without any individualized risk assessment.
The Supreme Court rejected a similar argument in Smith. The registrants argued that Alaska‘s registration scheme was excessive because it applied to all convicted sex offenders without regard to their future dangerousness. Id. But the Court rejected this argument, explaining that the Ex Post Facto Clause permits a State to make “reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences” and to “legislate with respect to convicted sex offenders as a class, rather than require individual determination
We thus cannot say that the residency and employment restrictions are excessive simply because Alabama applied them to registrants as a class without making any individual determinations about dangerousness. Importantly, as we explained above, the legislature could reasonably try to advance its goal of protecting the public by creating a categorical rule that subjects registrants to residency and employment restrictions. See Part VI-B-1-c & d; Shaw, 823 F.3d at 576 (holding that Oklahoma‘s residency restriction was not excessive even though it created “a categorical rule for sex offenders“); Miller, 405 F.3d at 722 (rejecting argument that Iowa‘s residency restriction was excessive because it applied to registrants as a class).
Second, Mr. McGuire argues that the residency and employment restrictions are excessive when combined because they are more severe than the restrictions imposed by other states.29 This argument rests on the premise that a state‘s restriction may be shown to be excessive merely because of its severity in
relation to other states’ restrictions or because other states have chosen less restrictive means to achieve their regulatory purpose. But Mr. McGuire cites no authority holding that such a showing satisfies a plaintiff‘s burden. And we are not persuaded by this argument, which seems in tension with the role of the states as “laboratories for experimentation” that may “devise various solutions where the best solution is far from clear.” United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see also Smith, 538 U.S. at 105 (explaining that “[t]he excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy,” but instead “whether the regulatory means chosen are reasonable in light of the nonpunitive objective“).
Third, Mr. McGuire says the residency and employment restrictions are excessive because of the difficulty he had finding a job or a house outside the exclusion zones. With this argument Mr. McGuire again seeks to establish that the residency and employment restrictions are punitive in effect through evidence of the law‘s effect on himself alone. But, as we explained above, Supreme Court precedent forecloses this argument. See Young, 531 U.S. at 262.
On the record before us, we conclude that Mr. McGuire did not establish by the clearest proof that the residency and employment restrictions are so punitive in purpose or effect that they override the Alabama legislature‘s stated nonpunitive intent. Accordingly, we affirm the district court‘s determination that the retroactive application of the residency and employment restrictions does not violate the
2. Mr. McGuire Failed to Carry His Heavy Burden to Prove that the Homeless Registration Requirement Is Sufficiently Punitive in Purpose or Effect
Next, we address ASORCNA‘s homeless-reporting requirement. As a refresher,
a. Resemblance to a Traditional Punishment
Mr. McGuire argues that the homeless registration requirement resembles the traditional punishment of probation or parole.30 We disagree.
Probation and parole are closely related punishments.31 Individuals on probation and parole “do not enjoy the absolute liberty to which every citizen is entitled, but only conditional liberty properly dependent on observance of special probation [or parole] restrictions.” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (alteration adopted) (internal quotation marks omitted). Probation and parole involve a series of mandatory conditions, which may include requiring a person to report regularly to law enforcement and to comply with other conditions including maintaining employment, obtaining consent from a probation or parole officer before moving or changing jobs, and abstaining from drugs or alcohol. See Shaw, 823 F.3d at 565. When a probationer or parolee violates the conditions of his probation or parole, the supervising officer seeks revocation in a proceeding that is part of the original offense. See Smith, 538 U.S. at 102; Griffin, 483 U.S. at 874; Black v. Romano, 471 U.S. 606, 611 (1985).
It is certainly true that registrants, like probationers and parolees, are subject to periodic reporting requirements. But ASORCNA‘s homeless registration requirement does not so closely resemble probation or parole that “the public [would] recognize” it as a punishment. Smith, 538 U.S. at 97. The homeless registration requirement is markedly different from probation and parole in two ways. First, the registration requirement is limited to a reporting. It does not entail the type of supervision that is a hallmark of probation and parole. Homeless registrants are not, for example, required to maintain employment, obtain consent before moving or changing jobs, or abstain from drugs or alcohol. Second, the
b. Affirmative Disability or Restraint
The second factor requires us to consider whether the homeless reporting requirement imposes an affirmative disability or restraint. Even though the in-person weekly reporting requirement imposes an affirmative disability or restraint, we cannot say that the requirement is punitive.
In assessing whether the weekly, in-person reporting requirement imposes an affirmative disability or restraint, we look to precedent addressing whether other sex offender registration schemes imposed these burdens. In Smith, the Supreme Court held that Alaska‘s scheme requiring yearly or quarterly registration by mail imposed no affirmative disability or restraint. 538 U.S. at 91, 100-101. Likewise, in W.B.H., we held that a federal law requiring sex offenders to register in person four times per year imposed no affirmative disability or restraint. See 664 F.3d at 857-58. Even though the in-person reporting requirement was “inconvenient,” we concluded that no affirmative disability or restraint resulted because the quarterly in-person reporting requirement did not prohibit registrants from changing residences, jobs, or student status without prior approval and “only require[d] that changes be reported.” Id. at 857.
The reasoning in Smith and W.B.H. perhaps suggests that the homeless reporting requirement imposes no affirmative disability or restraint. True, ASORCNA requires homeless registrants to provide regular updates to law enforcement officers, but they remain able to move into a fixed residence and to change where they stay throughout the week without obtaining prior approval. Still, ASORCNA‘s weekly reporting requirement is more burdensome than the registration schemes reviewed in Smith and W.B.H. because neither case considered a weekly reporting requirement or its effect specifically on homeless individuals.
Given the reporting frequency, we are persuaded that the homeless registration requirement imposes an affirmative disability or restraint. But even considering this factor, we cannot say that the homeless registration requirement is so punitive in effect that it overrides the legislature‘s nonpunitive intent. See Hendricks, 521 U.S. at 363 (explaining that the imposition of an affirmative disability or restraint does not necessarily mean that a restriction is punitive). We must weigh the extent of the disability or restraint that the weekly registration requirement imposes on homeless registrants against the legislature‘s nonpunitive purpose of protecting the public. See Miller, 405 F.3d at 721. As we explain below, the weekly registration requirement has a rational connection to the nonpunitive purpose of protecting the public and is not excessive in relation to that purpose. In the circumstances before us, even though the law imposes an affirmative disability or restraint, we conclude that it is not sufficiently punitive to negate the legislature‘s intent.
Turning to the next factor, we ask whether the homeless registration requirement furthers a traditional goal of punishment. We see no sufficiently strong deterrent or retributive effect to render the homeless registration requirement punitive. We accept that the requirement has a general deterrent effect by potentially preventing future crime. Indeed, the Alabama legislature expressly stated that it imposed the more frequent reporting requirement for homeless registrants “for the protection of the public,”
We agree with Mr. McGuire that, like the residency and employment restrictions, the homeless registration requirement furthers the goal of retribution to some extent. See Shaw, 823 F.3d at 572. For a restriction to be so retributive that it constitutes punishment, though, the statute‘s effect must “lack[] a reasonable relationship to non[]punitive objectives.” Id. As we explain when we apply the next factor, the Alabama legislature could rationally set out to protect public safety by requiring weekly registration from homeless registrants. In light of the rational connection between the reporting requirement and protecting public safety, this factor weighs against a finding of punitive effect.
d. Rational Connection to a Nonpunitive Purpose
Without a doubt, Alabama‘s homeless registration requirement has a rational connection to a nonpunitive purpose. As the Supreme Court recognized in Smith, requiring registrants to report to law enforcement is rationally connected to the legitimate, nonpunitive purpose of promoting public safety. See 538 U.S. at 102-03. It therefore is rational for a state to require registrants to report periodically to law enforcement to verify their information as well as to report when information changes—for example, after changing where they stay.
Relatedly, because homeless registrants lack a fixed address, they may be more transient than other registrants. To ensure that law enforcement and the public have accurate information about these registrants’ whereabouts and to protect public safety, a state legislature could rationally conclude that homeless registrants need to report more frequently. See
e. Excessiveness
As to the final factor, Mr. McGuire has not shown that the reporting requirement is excessive. Given the requirement‘s rational connection to a nonpunitive purpose, Mr. McGuire bears the burden to show
On the record before us, we conclude that Mr. McGuire failed to establish by the clearest proof that the weekly reporting requirement for homeless registrants is sufficiently punitive to negate the Alabama legislature‘s stated intention to enact a civil regulatory scheme. We thus affirm the district court‘s judgment that the weekly reporting requirement does not violate the
3. Mr. McGuire Failed to Carry His Heavy Burden to Prove that the Travel Notification Requirement Is Sufficiently Punitive in Purpose or Effect33
Next is ASORCNA‘s travel notification requirement. ASORCNA requires a registrant to provide notice to law enforcement before he may “temporarily leave[]” his county of residence for three or more consecutive days.
Mr. McGuire argues that the travel notification provision resembles probation or parole because it (1) bars registrants from spontaneous travel by requiring them to give notice at least three business days before traveling and (2) requires registrants to receive permission before traveling. But because ASORCNA, as amended, imposes neither restriction, we hold that it does not resemble probation or parole.34
First, Mr. McGuire contends that the travel notification provision restricts registrants from any form of spontaneous travel because they must notify law enforcement at least three business days before traveling. But he slightly misreads ASORCNA with respect to domestic travel. The law permits registrants to give notice within three business days of such travel.
Mr. McGuire also argues that because he must disclose in advance where he will be staying, he cannot spontaneously decide to stay at a different hotel or in a different town. Mr. McGuire argues that innocuous
Mr. McGuire contends that the travel notification provision resembles probation or parole because it requires registrants to obtain permission from law enforcement before traveling. Under the amended version of ASORCNA, however, no permission is required. A registrant must report to his county sheriff to “complete and sign a travel notification document” before traveling outside his county of residence for three or more days.
Turning to the second factor, the travel notification provision places some burden on registrants by requiring them to report in person before traveling. But because ASORCNA, in its current form, requires registrants to report in person to law enforcement only once before a trip, we cannot say that the reporting requirement imposes a burden rising to the level of an affirmative disability or restraint. See W.B.H., 664 F.3d at 857 (addressing why in-person reporting requirement did not impose affirmative restraint).
Now the third factor. Even if we assume that the travel notification provision has some deterrent effect, that effect does not make the provision punitive because the “mere presence” of a deterrent effect does not make a statute punitive. See Smith, 538 U.S. at 102 (internal quotation marks omitted). Likewise, even if the travel notification serves some retributive purpose, the provision is not punitive because, as we conclude below, it has a rational connection to a nonpunitive purpose and is not excessive. See id.
As to the fourth factor, the travel notification requirement has a rational connection to a nonpunitive purpose. The Attorney General argues that requiring a registrant to report travel outside the county “[e]ncourages personal contact with law enforcement” and “[p]rovides for continuity of contact between jurisdictions.” Appellees’ Br. at 47. In requiring registrants to disclose their travel plans to law enforcement shortly before traveling, the provision serves these rational purposes.
With respect to the final factor, the travel notification provision is not excessive. The provision appropriately serves the purpose of protecting public safety by requiring that registrants give notice shortly before traveling, with some flexibility (within three days) about when the notification must occur. Because the scope of the restriction is “reasonable in light of the nonpunitive objective,” Smith, 538 U.S. at 105, it is not excessive.
After considering the relevant factors, we conclude that Mr. McGuire has failed to establish by the clearest proof that the travel notification restriction is so punitive in purpose or effect that it overrides the legislature‘s stated nonpunitive intent.
The last provision of ASORCNA Mr. McGuire challenges is the requirement that local law enforcement notify a registrant‘s neighbors that a sex offender plans to establish or has established a residence nearby. Looking to the Supreme Court‘s decision in Smith, we conclude that Mr. McGuire has failed to show by the clearest proof that this provision is punitive.
Mr. McGuire argues that the direct community notification requirement resembles a traditional shaming punishment. Some historical punishments, like forcing an offender to wear a sign broadcasting his offense, were meant to inflict public disgrace. See Smith, 538 U.S. at 97-98. The required community notification bears at least an initial resemblance to traditional shaming punishments. When a registrant establishes a new residence, local law enforcement is to mail or hand deliver to a registrant‘s neighbors a flyer that discloses the registrant‘s name, address, photograph, and status as a sex offender.35 See
But Smith is clear that our inquiry does not end there. Even though the registrants in Smith experienced public stigma due to being listed in Alaska‘s internet database of sex offenders, the Court concluded that Alaska‘s community notification scheme did not resemble a historical shaming punishment. Id. at 98-99. This was because registrants were not subjected to “face-to-face shaming.” Id. at 98. Instead, any stigma resulted solely “from the dissemination of accurate information about a criminal record, most of which is already public.” Id. The Court analogized the way the public could access information in the database to “a visit to an official archive of criminal records” because a member of the public would receive information about a sex offender only after voluntarily taking several steps, including “going to the Department of Public Safety‘s Web site, proceed[ing] to the sex offender registry, and then look[ing] up the desired information.” Id. at 99.
The Supreme Court‘s decision in Smith does not answer directly whether ASORCNA‘s direct community notification resembles
We leave the difficult question whether the Act‘s community notification requirement sufficiently resembles historical shaming for another day, however. Even assuming that it does, Mr. McGuire still has not met his heavy burden to show that it is punitive in purpose or effect when we consider the other factors.
For the second factor, the direct community notification requirement does not impose an affirmative disability or restraint. The Supreme Court told us in Smith that a community notification provision “imposes no physical restraint.” 538 U.S. at 100. And although community notification “may have a lasting and painful impact on the convicted sex offender, these consequences flow not from [ASORCNA‘s] dissemination provision[], but from the fact of conviction, already a matter of public record.” Id. at 101.
The third factor, too, weighs in the Attorney General‘s favor. Even if the community notification requirement has some deterrent effect, some deterrent effect does not establish that the measure is punitive. See id. at 102. And even if the community notification requirement in some sense promotes retribution, this factor on its own does not make the requirement punitive. See id.
It is beyond dispute that the direct community notification provision meets the fourth factor, a rational connection to a legitimate governmental purpose. It was rational for the Alabama legislature to conclude that requiring law enforcement to notify neighbors, schools, and childcare centers of a registrant‘s presence would serve the civil purposes of promoting public safety and reducing recidivism.37 See
Finally, considering the fifth factor, we conclude that the means of notification Alabama has chosen—mailing and hand delivering flyers identifying the registrant to nearby neighbors, schools, and childcare centers—can reasonably be expected to achieve Alabama‘s nonpunitive objective of protecting the public. There is no argument here that the direct community notification requirement is excessive due to the formatting of the flyer or the way that it displays information about the registrants. Indeed, a flyer contains only factual information about a registrant, such as his name, race, sex, date of birth, physical description, address, and a brief description of his underlying offense. See
After weighing the factors, we conclude that Mr. McGuire failed to establish by the clearest proof that the direct community notification requirement is so punitive in purpose or effect that it overrides the Alabama legislature‘s intent to create a civil regulatory scheme. Even if we assume that the direct community notification resembles a historical punishment, we hold that Mr. McGuire failed to carry his heavy burden, particularly given the community notification requirement‘s rational connection to a nonpunitive purpose that is not excessive in relation to that purpose.38 Accordingly, we agree with the district court that the retroactive application of the direct community notification requirement does not violate the
VII. CONCLUSION
We VACATE the district court‘s judgment insofar as it involves Mr. McGuire‘s claims that it is unconstitutional to apply retroactively the following provisions of the Alabama Sex Offender Registration and Community Notification Act, and REMAND WITH INSTRUCTIONS that it dismiss those claims as moot: (1) the identification-labeling requirement and (2) the dual registration requirements for homeless registrants and for registrants providing travel notification.
We AFFIRM the district court‘s judgment insofar as it rejects Mr. McGuire‘s claims that it is unconstitutional to apply retroactively the following provisions of ASORCNA: (1) the residency and employment restrictions, (2) the homeless registration requirement, (3) the travel notification
VACATED AND REMANDED IN PART, AFFIRMED IN PART.
Notes
It appears from Alabama‘s sex offender registry website that Mr. McGuire‘s current address is at a house in Montgomery, and he is no longer homeless. ALEA‘s Sex Offender Registry is available here: https://www.icrimewatch.net/results.php?AgencyID=54247&SubmitNameSearch=1&OfndrCity=montgomery&OfndrLast=&OfndrFirst=&level=&AllCity=&altaddr=home_addr&excludeIncarcerated=0&page=1 (last visited Sept. 29, 2022). We may take judicial notice of it. See
We questioned whether there was any actual distinction between an “as-applied” and “facial” ex post facto challenge. Id. at 1339 n.3. But given the registrants’ litigation strategy and their express disavowal in the district court that they were bringing an as-applied challenge, we assumed, without deciding, that different frameworks were used to review “as-applied” and “facial” ex post facto challenges. See id.
Sex offenders, due to the nature of their offenses, have a reduced expectation of privacy. In balancing the sex offender‘s rights, and the interest of public safety, the Legislature finds that releasing certain information to the public furthers the primary governmental interest of protecting vulnerable populations, particularly children. Employment and residence restrictions, together with monitoring and tracking, also further that interest. The Legislature declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish sex offenders but to protect the public and, most importantly, promote child safety.
Ala. Code § 15-20A-2(5) .