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SMITH et al. v. DOE et al.

certiorari to the united states court of appeals for

the ninth circuit
No. 01729. Argued November 13, 2002Decided March 5, 2003
Under the Alaska Sex Offender Registration Act (Act), any sex offender
or child kidnaper incarcerated in the State must register with the De-
partment of Corrections within 30 days before his release, providing his
name, address, and other specified information. If the individual is at
liberty, he must register with local law enforcement authorities within
a working day of his conviction or of entering the State. If he was
convicted of a single, nonaggravated sex crime, the offender must pro-
vide annual verification of the submitted information for 15 years. If
he was convicted of an aggravated sex offense or of two or more sex
offenses, he must register for life and verify the information quarterly.
The offenders information is forwarded to the Department of Public
Safety, which maintains a central registry of sex offenders. Some of
the data, such as fingerprints, drivers license number, anticipated
change of address, and whether the offender has had medical treatment
afterwards, are kept confidential. The offenders name, aliases, ad-
dress, photograph, physical description, description, license and identi-
fication numbers of motor vehicles, place of employment, date of birth,
crime, date and place of conviction, length and conditions of sentence,
and a statement as to whether the offender is in compliance with the
Acts update requirements or cannot be located are, however, published
on the Internet. Both the Acts registration and notification require-
ments are retroactive.
Respondents were convicted of aggravated sex offenses. Both were
released from prison and completed rehabilitative programs for sex of-
fenders. Although convicted before the Acts passage, respondents are
covered by it. After the initial registration, they are required to sub-
mit quarterly verifications and notify the authorities of any changes.
Both respondents, along with the wife of one of them, also a respondent
here, brought this action under 42 U. S. C. 1983, seeking to declare the
Act void as to them under, inter alia, the Ex Post Facto Clause, U. S.
Const., Art. I, 10, cl. 1. The District Court granted petitioners sum-
mary judgment. The Ninth Circuit disagreed in relevant part, holding
that, because its effects were punitive, the Act violates the Ex Post
Facto Clause.
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Held: Because the Alaska Sex Offender Registration Act is nonpunitive,

its retroactive application does not violate the Ex Post Facto Clause.
Pp. 92106.
(a) The determinative question is whether the legislature meant to
establish civil proceedings. Kansas v. Hendricks, 521 U. S. 346, 361.
If the intention was to impose punishment, that ends the inquiry. If,
however, the intention was to enact a regulatory scheme that is civil
and nonpunitive, the Court must further examine whether the statutory
scheme is so punitive either in purpose or effect as to negate the States
intention to deem it civil. E. g., ibid. Because the Court ordinarily
defers to the legislatures stated intent, ibid., only the clearest
proof will suffice to override that intent and transform what has been
denominated a civil remedy into a criminal penalty. See, e. g., ibid.
P. 92.
(b) The Alaska Legislatures intent was to create a civil, nonpunitive
regime. The Court first considers the statutes text and structure,
Flemming v. Nestor, 363 U. S. 603, 617, asking whether the legislature
indicated either expressly or impliedly a preference for one label or the
other, Hudson v. United States, 522 U. S. 93, 99. Here, the statutory
text states the legislatures finding that sex offenders pose a high risk
of reoffending, identifies protecting the public from sex offenders as the
laws primary interest, and declares that release of certain information
about sex offenders to public agencies and the public will assist in pro-
tecting the public safety. This Court has already determined that an
imposition of restrictive measures on sex offenders adjudged to be dan-
gerous is a legitimate nonpunitive governmental objective. Hendricks,
521 U. S., at 363. Here, as in Hendricks, nothing on the statutes face
suggests that the legislature sought to create anything other than a civil
scheme designed to protect the public from harm. Id., at 361. The
contrary conclusion is not required by the Alaska Constitutions inclu-
sion of the need to protect the public as one of the purposes of criminal
administration. Where a legislative restriction is an incident of the
States power to protect the public health and safety, it will be consid-
ered as evidencing an intent to exercise that regulatory power, and not
a purpose to add to the punishment. E. g., Flemming v. Nestor, supra,
at 616. Other formal attributes of a legislative enactment, such as the
manner of its codification or the enforcement procedures it establishes,
are probative of the legislatures intent, see, e. g., Hendricks, 521 U. S.,
at 361, but are open to debate in this case. The Acts notification provi-
sions are codified in the States Health, Safety, and Housing Code, con-
firming the conclusion that the statute was intended as a nonpunitive
regulatory measure. Cf. ibid. The fact that the Acts registration pro-
visions are codified in the States Code of Criminal Procedure is not
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86 SMITH v. DOE

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dispositive, since a statutes location and labels do not by themselves

transform a civil remedy into a criminal one. See United States v. One
Assortment of 89 Firearms, 465 U. S. 354, 364365, and n. 6. The Code
of Criminal Procedure contains many other provisions that do not in-
volve criminal punishment. The Courts conclusion is not altered by
the fact that the Acts implementing procedural mechanisms require
the trial court to inform the defendant of the Acts requirements and,
if possible, the period of registration required. That conclusion is
strengthened by the fact that, aside from the duty to register, the stat-
ute itself mandates no procedures. Instead, it vests the authority to
promulgate implementing regulations with the Department of Public
Safety, an agency charged with enforcing both criminal and civil regula-
tory laws. Also telling is the fact that the Act does not require the
procedures adopted to contain any safeguards associated with the crimi-
nal process. By contemplating distinctly civil procedures, the legisla-
ture indicated clearly that it intended a civil, not a criminal, sanction.
United States v. Ursery, 518 U. S. 267, 289. Pp. 9296.
(c) Respondents cannot show, much less by the clearest proof, that
the Acts effects negate Alaskas intention to establish a civil regulatory
scheme. In analyzing the effects, the Court refers to the seven factors
noted in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168169, as a
useful framework. First, the regulatory scheme, in its necessary opera-
tion, has not been regarded in the Nations history and traditions as a
punishment. The fact that sex offender registration and notification
statutes are of fairly recent origin suggests that the Act was not meant
as a punitive measure, or, at least, that it did not involve a traditional
means of punishing. Respondents argument that the Act, particularly
its notification provisions, resembles shaming punishments of the colo-
nial period is unpersuasive. In contrast to those punishments, the Acts
stigma results not from public display for ridicule and shaming but from
the dissemination of accurate information about a criminal record, most
of which is already public. The fact that Alaska posts offender informa-
tion on the Internet does not alter this conclusion. Second, the Act
does not subject respondents to an affirmative disability or restraint.
It imposes no physical restraint, and so does not resemble imprison-
ment, the paradigmatic affirmative disability or restraint. Hudson, 522
U. S., at 104. Moreover, its obligations are less harsh than the sanctions
of occupational debarment, which the Court has held to be nonpunitive.
See, e. g., ibid. Contrary to the Ninth Circuits assertion, the record
contains no evidence that the Act has led to substantial occupational or
housing disadvantages for former sex offenders that would not have
otherwise occurred. Also unavailing is that courts assertion that the
periodic update requirement imposed an affirmative disability. The
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Act, on its face, does not require these updates to be made in person.
The holding that the registration system is parallel to probation or su-
pervised release is rejected because, in contrast to probationers and
supervised releasees, offenders subject to the Act are free to move
where they wish and to live and work as other citizens, with no supervi-
sion. While registrants must inform the authorities after they change
their facial features, borrow a car, or seek psychiatric treatment, they
are not required to seek permission to do so. Third, the Act does not
promote the traditional aims of punishment. That it might deter future
crimes is not dispositive. See, e. g., id., at 105. Moreover, the Ninth
Circuit erred in concluding that the Acts registration obligations were
retributive. While the Act does differentiate between individuals con-
victed of aggravated or multiple offenses and those convicted of a single
nonaggravated offense, these broad categories and the reporting re-
quirements corresponding length are reasonably related to the danger
of recidivism, and this is consistent with the regulatory objective.
Fourth, the Act has a rational connection to a legitimate nonpunitive
purpose, public safety, which is advanced by alerting the public to the
risk of sex offenders in their community. That the Act may not be
narrowly drawn to accomplish the stated purpose is not dispositive,
since such imprecision does not suggest that the Acts nonpunitive pur-
pose is a sham or mere pretext. Hendricks, supra, at 371 (Kennedy,
J., concurring). Fifth, the regulatory scheme is not excessive with re-
spect to the Acts purpose. The States determination to legislate with
respect to convicted sex offenders as a class, rather than require individ-
ual determination of their dangerousness, does not render the Act puni-
tive. See, e. g., Hawker v. New York, 170 U. S. 189, 197. Hendricks,
supra, at 357368, 364, distinguished. Moreover, the wide dissemina-
tion of offender information does not render the Act excessive, given
the general mobility of the population. The question here is not
whether the legislature has made the best choice possible to address the
problem it seeks to remedy, but whether the regulatory means chosen
are reasonable in light of the nonpunitive objective. The Act meets
this standard. Finally, the two remaining Mendoza-Martinez factors
whether the regulation comes into play only on a finding of scienter and
whether the behavior to which it applies is already a crimeare of little
weight in this case. Pp. 97106.
259 F. 3d 979, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist,

C. J., and OConnor, Scalia, and Thomas, JJ., joined. Thomas, J., filed
a concurring opinion, post, p. 106. Souter, J., filed an opinion concurring
in the judgment, post, p. 107. Stevens, J., filed a dissenting opinion, post,
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88 SMITH v. DOE

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p. 110. Ginsburg, J., filed a dissenting opinion, in which Breyer, J.,

joined, post, p. 114.

John G. Roberts, Jr., argued the cause for petitioners.

With him on the briefs were Jonathan S. Franklin, Cather-
ine E. Stetson, Cynthia M. Cooper, and Bruce M. Botelho,
Attorney General of Alaska.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General McCallum, Deputy
Solicitor General Dreeben, Patricia A. Millett, Leonard
Schaitman, Mark W. Pennak, and Wendy M. Keats.
Darryl L. Thompson argued the cause for respondents.
With him on the brief was Verne E. Rupright.*

*Briefs of amici curiae urging reversal were filed for the State of Cali-
fornia ex rel. Bill Lockyer by Mr. Lockyer, Attorney General of California,
Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior
Assistant Attorney General, Stan Cross, Supervising Deputy Attorney
General, Janet E. Neeley, Deputy Attorney General, Ken Salazar, Attor-
ney General of Colorado, Alan Gilbert, Solicitor General, Donald S.
Quick, Deputy Attorney General, Matthew S. Holman, Assistant Attor-
ney General, and Robert R. Rigsby, Corporation Counsel of the District of
Columbia, and by the Attorneys General for their respective jurisdictions
as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Richard
Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butter-
worth of Florida, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii,
James E. Ryan of Illinois, Steve Carter of Indiana, Carla J. Stovall of
Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisi-
ana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachu-
setts, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri,
Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del
Papa of Nevada, Philip T. McLaughlin of New Hampshire, David Sam-
son of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of
New York, Wayne Stenehjem of North Dakota, Betty D. Montgomery of
Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D.
Michael Fisher of Pennsylvania, Anabelle Rodrguez of Puerto Rico,
Charles M. Condon of South Carolina, Mark Barnett of South Dakota,
Paul G. Summers of Tennessee, John Cornyn of Texas, Mark L. Shurtleff
of Utah, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin
Islands, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of
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Opinion of the Court

Justice Kennedy delivered the opinion of the Court.

The Alaska Sex Offender Registration Act requires con-
victed sex offenders to register with law enforcement au-
thorities, and much of the information is made public. We
must decide whether the registration requirement is a retro-
active punishment prohibited by the Ex Post Facto Clause.

I
A
The State of Alaska enacted the Alaska Sex Offender Reg-
istration Act (Act) on May 12, 1994. 1994 Alaska Sess. Laws
ch. 41. Like its counterparts in other States, the Act is
termed a Megans Law. Megan Kanka was a 7-year-old
New Jersey girl who was sexually assaulted and murdered
in 1994 by a neighbor who, unknown to the victims family,
had prior convictions for sex offenses against children. The
crime gave impetus to laws for mandatory registration of
sex offenders and corresponding community notification. In
1994, Congress passed the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Act,
title 17, 108 Stat. 2038, as amended, 42 U. S. C. 14071, which
conditions certain federal law enforcement funding on the
States adoption of sex offender registration laws and sets

West Virginia, and James E. Doyle of Wisconsin; and for the Council of
State Governments et al. by Richard Ruda and James I. Crowley.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Lawrence S. Lustberg, Steven R. Shapiro,
and Joshua L. Dratel; for Citizens for Penal Reform, Inc., by W. Andrew
McCullough; for the Electronic Privacy Information Center by Marc Ro-
tenberg; for the Massachusetts Committee for Public Counsel Services by
Carol A. Donovan; for the Office of the Public Defender for the State of
New Jersey et al. by Peter A. Garcia, Michael Z. Buncher, Brian J. Neff,
Richard S. Lehrich, and Edward Barocas; and for the Public Defender
Service for the District of Columbia by James W. Klein, Samia A. Fam,
and Corinne A. Beckwith.
Lucy A. Dalglish and Gregg P. Leslie filed a brief for the Reporters
Committee for Freedom of the Press as amicus curiae.
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90 SMITH v. DOE

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minimum standards for state programs. By 1996, every

State, the District of Columbia, and the Federal Government
had enacted some variation of Megans Law.
The Alaska law, which is our concern in this case, contains
two components: a registration requirement and a notifica-
tion system. Both are retroactive. 1994 Alaska Sess. Laws
ch. 41, 12(a). The Act requires any sex offender or child
kidnapper who is physically present in the state to register,
either with the Department of Corrections (if the individual
is incarcerated) or with the local law enforcement authorities
(if the individual is at liberty). Alaska Stat. 12.63.010(a),
(b) (2000). Prompt registration is mandated. If still in
prison, a covered sex offender must register within 30 days
before release; otherwise he must do so within a working
day of his conviction or of entering the State. 12.63.010(a).
The sex offender must provide his name, aliases, identifying
features, address, place of employment, date of birth, convic-
tion information, drivers license number, information about
vehicles to which he has access, and postconviction treatment
history. 12.63.010(b)(1). He must permit the authorities
to photograph and fingerprint him. 12.63.010(b)(2).
If the offender was convicted of a single, nonaggra-
vated sex crime, he must provide annual verification of
the submitted information for 15 years. 12.63.010(d)(1),
12.63.020(a)(2). If he was convicted of an aggravated sex
offense or of two or more sex offenses, he must register for
life and verify the information quarterly. 12.63.010(d)(2),
12.63.020(a)(1). The offender must notify his local police de-
partment if he moves. 12.63.010(c). A sex offender who
knowingly fails to comply with the Act is subject to criminal
prosecution. 11.56.835, 11.56.840.
The information is forwarded to the Alaska Department
of Public Safety, which maintains a central registry of sex
offenders. 18.65.087(a). Some of the data, such as fin-
gerprints, drivers license number, anticipated change of
address, and whether the offender has had medical treat-
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ment afterwards, are kept confidential. 12.63.010(b),

18.65.087(b). The following information is made available to
the public: the sex offenders or child kidnappers name,
aliases, address, photograph, physical description, descrip-
tion[,] license [and] identification numbers of motor vehicles,
place of employment, date of birth, crime for which con-
victed, date of conviction, place and court of conviction,
length and conditions of sentence, and a statement as to
whether the offender or kidnapper is in compliance with
[the update] requirements . . . or cannot be located.
18.65.087(b). The Act does not specify the means by which
the registry information must be made public. Alaska has
chosen to make most of the nonconfidential information avail-
able on the Internet.
B
Respondents John Doe I and John Doe II were convicted
of sexual abuse of a minor, an aggravated sex offense. John
Doe I pleaded nolo contendere after a court determination
that he had sexually abused his daughter for two years, when
she was between the ages of 9 and 11; John Doe II entered
a nolo contendere plea to sexual abuse of a 14-year-old child.
Both were released from prison in 1990 and completed reha-
bilitative programs for sex offenders. Although convicted
before the passage of the Act, respondents are covered by it.
After the initial registration, they are required to submit
quarterly verifications and notify the authorities of any
changes. Both respondents, along with respondent Jane
Doe, wife of John Doe I, brought an action under Rev. Stat.
1979, 42 U. S. C. 1983, seeking to declare the Act void as
to them under the Ex Post Facto Clause of Article I, 10,
cl. 1, of the Constitution and the Due Process Clause of 1
of the Fourteenth Amendment. The United States District
Court for the District of Alaska granted summary judgment
for petitioners. In agreement with the District Court, the
Court of Appeals for the Ninth Circuit determined the state
legislature had intended the Act to be a nonpunitive, civil
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92 SMITH v. DOE

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regulatory scheme; but, in disagreement with the District

Court, it held the effects of the Act were punitive despite
the legislatures intent. In consequence, it held the Act vio-
lates the Ex Post Facto Clause. Doe I v. Otte, 259 F. 3d 979
(2001). We granted certiorari. 534 U. S. 1126 (2002).

II
This is the first time we have considered a claim that a sex
offender registration and notification law constitutes retroac-
tive punishment forbidden by the Ex Post Facto Clause.
The framework for our inquiry, however, is well established.
We must ascertain whether the legislature meant the stat-
ute to establish civil proceedings. Kansas v. Hendricks,
521 U. S. 346, 361 (1997). If the intention of the legislature
was to impose punishment, that ends the inquiry. If, how-
ever, the intention was to enact a regulatory scheme that is
civil and nonpunitive, we must further examine whether the
statutory scheme is so punitive either in purpose or effect
as to negate [the States] intention to deem it civil. Ibid.
(quoting United States v. Ward, 448 U. S. 242, 248249
(1980)). Because we ordinarily defer to the legislatures
stated intent, Hendricks, supra, at 361, only the clearest
proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal
penalty, Hudson v. United States, 522 U. S. 93, 100 (1997)
(quoting Ward, supra, at 249); see also Hendricks, supra, at
361; United States v. Ursery, 518 U. S. 267, 290 (1996); United
States v. One Assortment of 89 Firearms, 465 U. S. 354, 365
(1984).
A
Whether a statutory scheme is civil or criminal is first of
all a question of statutory construction. Hendricks, supra,
at 361 (internal quotation marks omitted); see also Hudson,
supra, at 99. We consider the statutes text and its struc-
ture to determine the legislative objective. Flemming v.
Nestor, 363 U. S. 603, 617 (1960). A conclusion that the leg-
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islature intended to punish would satisfy an ex post facto

challenge without further inquiry into its effects, so consid-
erable deference must be accorded to the intent as the legis-
lature has stated it.
The courts must first ask whether the legislature, in es-
tablishing the penalizing mechanism, indicated either ex-
pressly or impliedly a preference for one label or the other.
Hudson, supra, at 99 (internal quotation marks omitted).
Here, the Alaska Legislature expressed the objective of the
law in the statutory text itself. The legislature found that
sex offenders pose a high risk of reoffending, and identified
protecting the public from sex offenders as the primary
governmental interest of the law. 1994 Alaska Sess. Laws
ch. 41, 1. The legislature further determined that release
of certain information about sex offenders to public agencies
and the general public will assist in protecting the public
safety. Ibid. As we observed in Hendricks, where we
examined an ex post facto challenge to a postincarceration
confinement of sex offenders, an imposition of restrictive
measures on sex offenders adjudged to be dangerous is
a legitimate nonpunitive governmental objective and has
been historically so regarded. 521 U. S., at 363. In this
case, as in Hendricks, [n]othing on the face of the statute
suggests that the legislature sought to create anything other
than a civil . . . scheme designed to protect the public from
harm. Id., at 361.
Respondents seek to cast doubt upon the nonpunitive na-
ture of the laws declared objective by pointing out that the
Alaska Constitution lists the need for protecting the public
as one of the purposes of criminal administration. Brief for
Respondents 23 (citing Alaska Const., Art. I, 12). As the
Court stated in Flemming v. Nestor, rejecting an ex post
facto challenge to a law terminating benefits to deported
aliens, where a legislative restriction is an incident of the
States power to protect the health and safety of its citizens,
it will be considered as evidencing an intent to exercise that
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94 SMITH v. DOE

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regulatory power, and not a purpose to add to the punish-

ment. 363 U. S., at 616 (citing Hawker v. New York, 170
U. S. 189 (1898)). The Court repeated this principle in 89
Firearms, upholding a statute requiring forfeiture of unli-
censed firearms against a double jeopardy challenge. The
Court observed that, in enacting the provision, Congress
was concerned with the widespread traffic in firearms and
with their general availability to those whose possession
thereof was contrary to the public interest. 465 U. S., at
364 (quoting Huddleston v. United States, 415 U. S. 814, 824
(1974)). This goal was plainly more remedial than puni-
tive. 465 U. S., at 364. These precedents instruct us that
even if the objective of the Act is consistent with the pur-
poses of the Alaska criminal justice system, the States pur-
suit of it in a regulatory scheme does not make the objec-
tive punitive.
Other formal attributes of a legislative enactment, such as
the manner of its codification or the enforcement procedures
it establishes, are probative of the legislatures intent. See
Hendricks, supra, at 361; Hudson, supra, at 103; 89 Fire-
arms, supra, at 363. In this case these factors are open to
debate. The notification provisions of the Act are codified
in the States Health, Safety, and Housing Code, 18, con-
firming our conclusion that the statute was intended as a
nonpunitive regulatory measure. Cf. Hendricks, supra, at
361 (the States objective to create a civil proceeding is evi-
denced by its placement of the Act within the [States] pro-
bate code, instead of the criminal code (citations omitted)).
The Acts registration provisions, however, are codified in
the States criminal procedure code, and so might seem to
point in the opposite direction. These factors, though, are
not dispositive. The location and labels of a statutory provi-
sion do not by themselves transform a civil remedy into a
criminal one. In 89 Firearms, the Court held a forfeiture
provision to be a civil sanction even though the authorizing
statute was in the criminal code. 465 U. S., at 364365.
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The Court rejected the argument that the placement demon-

strated Congress intention to create an additional criminal
sanction, observing that both criminal and civil sanctions
may be labeled penalties. Id., at 364, n. 6.
The same rationale applies here. Title 12 of Alaskas
Code of Criminal Procedure (where the Acts registration
provisions are located) contains many provisions that do not
involve criminal punishment, such as civil procedures for
disposing of recovered and seized property, Alaska Stat.
12.36.010 et seq. (2000); laws protecting the confidentiality
of victims and witnesses, 12.61.010 et seq.; laws governing
the security and accuracy of criminal justice information,
12.62.110 et seq.; laws governing civil postconviction ac-
tions, 12.72.010 et seq.; and laws governing actions for writs
of habeas corpus, 12.75.010 et seq., which under Alaska law
are independent civil proceeding[s], State v. Hannagan,
559 P. 2d 1059, 1063 (Alaska 1977). Although some of these
provisions relate to criminal administration, they are not in
themselves punitive. The partial codification of the Act in
the States criminal procedure code is not sufficient to sup-
port a conclusion that the legislative intent was punitive.
The procedural mechanisms to implement the Act do not
alter our conclusion. After the Acts adoption Alaska
amended its Rules of Criminal Procedure concerning the ac-
ceptance of pleas and the entering of criminal judgments.
The rule on pleas now requires the court to infor[m] the
defendant in writing of the requirements of [the Act] and, if
it can be determined by the court, the period of registration
required. Alaska Rule Crim. Proc. 11(c)(4) (2002). Simi-
larly, the written judgments for sex offenses and child kid-
napings must set out the requirements of [the Act] and, if it
can be determined by the court, whether that conviction will
require the offender or kidnapper to register for life or a
lesser period. Alaska Stat. 12.55.148(a) (2000).
The policy to alert convicted offenders to the civil conse-
quences of their criminal conduct does not render the conse-
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96 SMITH v. DOE

Opinion of the Court

quences themselves punitive. When a State sets up a regu-

latory scheme, it is logical to provide those persons subject
to it with clear and unambiguous notice of the requirements
and the penalties for noncompliance. The Act requires reg-
istration either before the offenders release from confine-
ment or within a day of his conviction (if the offender is not
imprisoned). Timely and adequate notice serves to apprise
individuals of their responsibilities and to ensure compliance
with the regulatory scheme. Notice is important, for the
scheme is enforced by criminal penalties. See 11.56.835,
11.56.840. Although other methods of notification may be
available, it is effective to make it part of the plea colloquy
or the judgment of conviction. Invoking the criminal proc-
ess in aid of a statutory regime does not render the statutory
scheme itself punitive.
Our conclusion is strengthened by the fact that, aside from
the duty to register, the statute itself mandates no proce-
dures. Instead, it vests the authority to promulgate imple-
menting regulations with the Alaska Department of Public
Safety, 12.63.020(b), 18.65.087(d)an agency charged with
enforcement of both criminal and civil regulatory laws.
See, e. g., 17.30.100 (enforcement of drug laws); 18.70.010
(fire protection); 28.05.011 (motor vehicles and road safety);
44.41.020 (protection of life and property). The Act itself
does not require the procedures adopted to contain any safe-
guards associated with the criminal process. That leads us
to infer that the legislature envisioned the Acts implementa-
tion to be civil and administrative. By contemplating dis-
tinctly civil procedures, the legislature indicate[d] clearly
that it intended a civil, not a criminal sanction. Ursery,
518 U. S., at 289 (internal quotation marks omitted; alter-
ation in original).
We conclude, as did the District Court and the Court of
Appeals, that the intent of the Alaska Legislature was to
create a civil, nonpunitive regime.
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B
In analyzing the effects of the Act we refer to the seven
factors noted in Kennedy v. Mendoza-Martinez, 372 U. S.
144, 168169 (1963), as a useful framework. These factors,
which migrated into our ex post facto case law from double
jeopardy jurisprudence, have their earlier origins in cases
under the Sixth and Eighth Amendments, as well as the Bill
of Attainder and the Ex Post Facto Clauses. See id., at
168169, and nn. 2228. Because the Mendoza-Martinez
factors are designed to apply in various constitutional con-
texts, we have said they are neither exhaustive nor disposi-
tive, United States v. Ward, 448 U. S., at 249; 89 Firearms,
465 U. S., at 365, n. 7, but are useful guideposts, Hudson,
522 U. S., at 99. The factors most relevant to our analysis
are 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 re-
spect to this purpose.
A historical survey can be useful because a State that de-
cides to punish an individual is likely to select a means
deemed punitive in our tradition, so that the public will rec-
ognize it as such. The Court of Appeals observed that the
sex offender registration and notification statutes are of
fairly recent origin, 259 F. 3d, at 989, which suggests that
the statute was not meant as a punitive measure, or, at least,
that it did not involve a traditional means of punishing. Re-
spondents argue, however, that the Actand, in particular,
its notification provisionsresemble shaming punishments of
the colonial period. Brief for Respondents 3334 (citing A.
Earle, Curious Punishments of Bygone Days 12 (1896)).
Some colonial punishments indeed were meant to inflict
public disgrace. Humiliated offenders were required to
stand in public with signs cataloguing their offenses.
Hirsch, From Pillory to Penitentiary: The Rise of Criminal
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98 SMITH v. DOE

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Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179,

1226 (1982); see also L. Friedman, Crime and Punishment in
American History 38 (1993). At times the labeling would be
permanent: A murderer might be branded with an M, and
a thief with a T. R. Semmes, Crime and Punishment in
Early Maryland 35 (1938); see also Massaro, Shame, Culture,
and American Criminal Law, 89 Mich. L. Rev. 1880, 1913
(1991). The aim was to make these offenders suffer perma-
nent stigmas, which in effect cast the person out of the com-
munity. Ibid.; see also Friedman, supra, at 40; Hirsch,
supra, at 1228. The most serious offenders were banished,
after which they could neither return to their original com-
munity nor, reputation tarnished, be admitted easily into a
new one. T. Blomberg & K. Lucken, American Penology: A
History of Control 3031 (2000). Respondents contend that
Alaskas compulsory registration and notification resemble
these historical punishments, for they publicize the crime,
associate it with his name, and, with the most serious offend-
ers, do so for life.
Any initial resemblance to early punishments is, however,
misleading. Punishments such as whipping, pillory, and
branding inflicted physical pain and staged a direct confron-
tation between the offender and the public. Even punish-
ments that lacked the corporal component, such as public
shaming, humiliation, and banishment, involved more than
the dissemination of information. They either held the per-
son up before his fellow citizens for face-to-face shaming or
expelled him from the community. See Earle, supra, at 20,
3536, 5152; Massaro, supra, at 19121924; Semmes, supra,
at 3940; Blomberg & Lucken, supra, at 3031. By con-
trast, the stigma of Alaskas Megans Law results not from
public display for ridicule and shaming but from the dissemi-
nation of accurate information about a criminal record, most
of which is already public. Our system does not treat dis-
semination of truthful information in furtherance of a legiti-
mate governmental objective as punishment. On the con-
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Opinion of the Court

trary, our criminal law tradition insists on public indictment,

public trial, and public imposition of sentence. Transpar-
ency is essential to maintaining public respect for the crimi-
nal justice system, ensuring its integrity, and protecting the
rights of the accused. The publicity may cause adverse con-
sequences for the convicted defendant, running from mild
personal embarrassment to social ostracism. In contrast to
the colonial shaming punishments, however, the State does
not make the publicity and the resulting stigma an integral
part of the objective of the regulatory scheme.
The fact that Alaska posts the information on the Internet
does not alter our conclusion. It must be acknowledged that
notice of a criminal conviction subjects the offender to public
shame, the humiliation increasing in proportion to the extent
of the publicity. And the geographic reach of the Internet
is greater than anything which could have been designed in
colonial times. These facts do not render Internet notifica-
tion punitive. The purpose and the principal effect of noti-
fication are to inform the public for its own safety, not to
humiliate the offender. Widespread public access is neces-
sary for the efficacy of the scheme, and the attendant humili-
ation is but a collateral consequence of a valid regulation.
The States Web site does not provide the public with
means to shame the offender by, say, posting comments un-
derneath his record. An individual seeking the information
must take the initial step of going to the Department of Pub-
lic Safetys Web site, proceed to the sex offender registry,
and then look up the desired information. The process is
more analogous to a visit to an official archive of criminal
records than it is to a scheme forcing an offender to appear
in public with some visible badge of past criminality. The
Internet makes the document search more efficient, cost ef-
fective, and convenient for Alaskas citizenry.
We next consider whether the Act subjects respondents to
an affirmative disability or restraint. Mendoza-Martinez,
supra, at 168. Here, we inquire how the effects of the
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100 SMITH v. DOE

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Act are felt by those subject to it. If the disability or re-

straint is minor and indirect, its effects are unlikely to be
punitive.
The Act imposes no physical restraint, and so does not
resemble the punishment of imprisonment, which is the para-
digmatic affirmative disability or restraint. Hudson, 522
U. S., at 104. The Acts obligations are less harsh than the
sanctions of occupational debarment, which we have held to
be nonpunitive. See ibid. (forbidding further participation
in the banking industry); De Veau v. Braisted, 363 U. S. 144
(1960) (forbidding work as a union official); Hawker v. New
York, 170 U. S. 189 (1898) (revocation of a medical license).
The Act does not restrain activities sex offenders may pur-
sue but leaves them free to change jobs or residences.
The Court of Appeals sought to distinguish Hawker and
cases which have followed it on the grounds that the disabil-
ity at issue there was specific and narrow, confined to par-
ticular professions, whereas the procedures employed under
the Alaska statute are likely to make [respondents] com-
pletely unemployable because employers will not want to
risk loss of business when the public learns that they have
hired sex offenders. 259 F. 3d, at 988. This is conjecture.
Landlords and employers could conduct background checks
on the criminal records of prospective employees or tenants
even with the Act not in force. The record in this case con-
tains no evidence that the Act has led to substantial occupa-
tional or housing disadvantages for former sex offenders that
would not have otherwise occurred through the use of rou-
tine background checks by employers and landlords. The
Court of Appeals identified only one incident from the 7-year
history of Alaskas law where a sex offender suffered commu-
nity hostility and damage to his business after the informa-
tion he submitted to the registry became public. Id., at 987
988. This could have occurred in any event, because the
information about the individuals conviction was already in
the public domain.
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Although the public availability of the information may

have a lasting and painful impact on the convicted sex of-
fender, these consequences flow not from the Acts registra-
tion and dissemination provisions, but from the fact of con-
viction, already a matter of public record. The State makes
the facts underlying the offenses and the resulting convic-
tions accessible so members of the public can take the
precautions they deem necessary before dealing with the
registrant.
The Court of Appeals reasoned that the requirement of
periodic updates imposed an affirmative disability. In
reaching this conclusion, the Court of Appeals was under a
misapprehension, albeit one created by the State itself dur-
ing the argument below, that the offender had to update the
registry in person. Id., at 984, n. 4. The States represen-
tation was erroneous. The Alaska statute, on its face, does
not require these updates to be made in person. And, as
respondents conceded at the oral argument before us, the
record contains no indication that an in-person appearance
requirement has been imposed on any sex offender subject
to the Act. Tr. of Oral Arg. 2628.
The Court of Appeals held that the registration system is
parallel to probation or supervised release in terms of the
restraint imposed. 259 F. 3d, at 987. This argument has
some force, but, after due consideration, we reject it. Pro-
bation and supervised release entail a series of mandatory
conditions and allow the supervising officer to seek the revo-
cation of probation or release in case of infraction. See gen-
erally Johnson v. United States, 529 U. S. 694 (2000); Griffin
v. Wisconsin, 483 U. S. 868 (1987). By contrast, offenders
subject to the Alaska statute are free to move where they
wish and to live and work as other citizens, with no super-
vision. Although registrants must inform the authorities
after they change their facial features (such as growing a
beard), borrow a car, or seek psychiatric treatment, they are
not required to seek permission to do so. A sex offender
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102 SMITH v. DOE

Opinion of the Court

who fails to comply with the reporting requirement may be

subjected to a criminal prosecution for that failure, but any
prosecution is a proceeding separate from the individuals
original offense. Whether other constitutional objections
can be raised to a mandatory reporting requirement, and
how those questions might be resolved, are concerns beyond
the scope of this opinion. It suffices to say the registration
requirements make a valid regulatory program effective and
do not impose punitive restraints in violation of the Ex Post
Facto Clause.
The State concedes that the statute might deter future
crimes. Respondents seize on this proposition to argue that
the law is punitive, because deterrence is one purpose of pun-
ishment. Brief for Respondents 37. This proves too much.
Any number of governmental programs might deter crime
without imposing punishment. To hold that the mere pres-
ence of a deterrent purpose renders such sanctions
criminal . . . would severely undermine the Governments
ability to engage in effective regulation. Hudson, supra,
at 105; see also Ursery, 518 U. S., at 292; 89 Firearms, 465
U. S., at 364.
The Court of Appeals was incorrect to conclude that the
Acts registration obligations were retributive because the
length of the reporting requirement appears to be measured
by the extent of the wrongdoing, not by the extent of the risk
posed. 259 F. 3d, at 990. The Act, it is true, differentiates
between individuals convicted of aggravated or multiple of-
fenses and those convicted of a single nonaggravated offense.
Alaska Stat. 12.63.020(a)(1) (2000). The broad categories,
however, and the corresponding length of the reporting re-
quirement, are reasonably related to the danger of recidi-
vism, and this is consistent with the regulatory objective.
The Acts rational connection to a nonpunitive purpose is
a [m]ost significant factor in our determination that the
statutes effects are not punitive. Ursery, supra, at 290.
As the Court of Appeals acknowledged, the Act has a legit-
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Opinion of the Court

imate nonpunitive purpose of public safety, which is ad-

vanced by alerting the public to the risk of sex offenders in
their communit[y]. 259 F. 3d, at 991. Respondents con-
cede, in turn, that this alternative purpose is valid, and ra-
tional. Brief for Respondents 38. They contend, however,
that the Act lacks the necessary regulatory connection be-
cause it is not narrowly drawn to accomplish the stated
purpose. Ibid. A statute is not deemed punitive simply
because it lacks a close or perfect fit with the nonpunitive
aims it seeks to advance. The imprecision respondents rely
upon does not suggest that the Acts nonpunitive purpose
is a sham or mere pretext. Hendricks, 521 U. S., at 371
(Kennedy, J., concurring).
In concluding the Act was excessive in relation to its regu-
latory purpose, the Court of Appeals relied in large part on
two propositions: first, that the statute applies to all con-
victed sex offenders without regard to their future danger-
ousness; and, second, that it places no limits on the number
of persons who have access to the information. 259 F. 3d,
at 991992. Neither argument is persuasive.
Alaska could conclude that a conviction for a sex offense
provides evidence of substantial risk of recidivism. The leg-
islatures findings are consistent with grave concerns over
the high rate of recidivism among convicted sex offenders
and their dangerousness as a class. The risk of recidivism
posed by sex offenders is frightening and high. McKune
v. Lile, 536 U. S. 24, 34 (2002); see also id., at 33 (When
convicted sex offenders reenter society, they are much more
likely than any other type of offender to be rearrested for a
new rape or sexual assault (citing U. S. Dept. of Justice, Bu-
reau of Justice Statistics, Sex Offenses and Offenders 27
(1997); U. S. Dept. of Justice, Bureau of Justice Statistics,
Recidivism of Prisoners Released in 1983, p. 6 (1997))).
The Ex Post Facto Clause does not preclude a State from
making reasonable categorical judgments that conviction of
specified crimes should entail particular regulatory conse-
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104 SMITH v. DOE

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quences. We have upheld against ex post facto challenges

laws imposing regulatory burdens on individuals convicted
of crimes without any corresponding risk assessment. See
De Veau, 363 U. S., at 160; Hawker, 170 U. S., at 197. As
stated in Hawker: Doubtless, one who has violated the crim-
inal law may thereafter reform and become in fact possessed
of a good moral character. But the legislature has power
in cases of this kind to make a rule of universal ap-
plication . . . . Ibid. The States determination to legislate
with respect to convicted sex offenders as a class, rather
than require individual determination of their dangerous-
ness, does not make the statute a punishment under the Ex
Post Facto Clause.
Our decision in Hendricks, on which respondents rely,
Brief for Respondents 39, is not to the contrary. The States
objective in Hendricks was involuntary (and potentially in-
definite) confinement of particularly dangerous individuals.
521 U. S., at 357358, 364. The magnitude of the restraint
made individual assessment appropriate. The Act, by con-
trast, imposes the more minor condition of registration. In
the context of the regulatory scheme the State can dispense
with individual predictions of future dangerousness and
allow the public to assess the risk on the basis of accurate,
nonprivate information about the registrants convictions
without violating the prohibitions of the Ex Post Facto
Clause.
The duration of the reporting requirements is not exces-
sive. Empirical research on child molesters, for instance,
has shown that, [c]ontrary to conventional wisdom, most re-
offenses do not occur within the first several years after re-
lease, but may occur as late as 20 years following release.
National Institute of Justice, R. Prentky, R. Knight, & A.
Lee, U. S. Dept. of Justice, Child Sexual Molestation: Re-
search Issues 14 (1997).
The Court of Appeals reliance on the wide dissemination
of the information is also unavailing. The Ninth Circuit
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Opinion of the Court

highlighted that the information was available world-wide

and [b]roadcas[t] in an indiscriminate manner. 259 F. 3d,
at 992. As we have explained, however, the notification sys-
tem is a passive one: An individual must seek access to the
information. The Web site warns that the use of displayed
information to commit a criminal act against another person
is subject to criminal prosecution. http://www.dps.state.
ak.us/nSorcr/asp/ (as visited Jan. 17, 2003) (available in the
Clerk of Courts case file). Given the general mobility of our
population, for Alaska to make its registry system available
and easily accessible throughout the State was not so exces-
sive a regulatory requirement as to become a punishment.
See D. Schram & C. Milloy, Community Notification: A Study
of Offender Characteristics and Recidivism 13 (1995) (38% of
recidivist sex offenses in the State of Washington took place
in jurisdictions other than where the previous offense was
committed).
The excessiveness inquiry of our ex post facto jurispru-
dence is not an exercise in determining whether the leg-
islature has made the best choice possible to address the
problem it seeks to remedy. The question is whether the
regulatory means chosen are reasonable in light of the non-
punitive objective. The Act meets this standard.
The two remaining Mendoza-Martinez factorswhether
the regulation comes into play only on a finding of scienter
and whether the behavior to which it applies is already a
crimeare of little weight in this case. The regulatory
scheme applies only to past conduct, which was, and is, a
crime. This is a necessary beginning point, for recidivism
is the statutory concern. The obligations the statute im-
poses are the responsibility of registration, a duty not predi-
cated upon some present or repeated violation.
Our examination of the Acts effects leads to the determi-
nation that respondents cannot show, much less by the clear-
est proof, that the effects of the law negate Alaskas intention
to establish a civil regulatory scheme. The Act is nonpuni-
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106 SMITH v. DOE

Thomas, J., concurring

tive, and its retroactive application does not violate the Ex

Post Facto Clause. The judgment of the Court of Appeals
for the Ninth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.

It is so ordered.
Justice Thomas, concurring.
I join the Courts opinion upholding the Alaska Sex Of-
fender Registration Act (ASORA) against ex post facto chal-
lenge. I write separately, however, to reiterate that there
is no place for [an implementation-based] challenge in our
ex post facto jurisprudence. Seling v. Young, 531 U. S. 250,
273 (2001) (Thomas, J., concurring in judgment). Instead,
the determination whether a scheme is criminal or civil must
be limited to the analysis of the obligations actually created
by statute. See id., at 273274 ([T]o the extent that the
conditions result from the fact that the statute is not being
applied according to its terms, the conditions are not the
effect of the statute, but rather the effect of its improper
implementation). As we have stated, the categorization of
a proceeding as civil or criminal is accomplished by examin-
ing the statute on its face. Hudson v. United States, 522
U. S. 93, 100 (1997) (internal quotation marks omitted).
In this case, ASORA does not specify a means of making
registry information available to the public. It states only
that
[i]nformation about a sex offender . . . that is contained
in the central registry . . . is confidential and not subject
to public disclosure except as to the sex offenders . . .
name, aliases, address, photograph, physical description,
description of motor vehicles, license numbers of motor
vehicles, and vehicle identification numbers of motor ve-
hicles, place of employment, date of birth, crime for
which convicted, date of conviction, place and court of
conviction, length and conditions of sentence, and a
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Souter, J., concurring in judgment

statement as to whether the offender . . . is in compliance

with requirements of AS 12.63 or cannot be located.
Alaska Stat. 18.65.087(b) (2000).
By considering whether Internet dissemination renders
ASORA punitive, the Court has strayed from the statute.
With this qualification, I concur.

Justice Souter, concurring in the judgment.

I agree with the Court that Alaskas Sex Offender Regis-
tration Act does not amount to an ex post facto law. But
the majority comes to that conclusion by a different path
from mine, and I concur only in the judgment.
As the Court says, our cases have adopted a two-step en-
quiry to see whether a law is punitive for purposes of various
constitutional provisions including the Ex Post Facto Clause.
At the first step in applying the so-called Kennedy-Ward
test, we ask whether the legislature intended a civil or crimi-
nal consequence; at the second, we look behind the legisla-
tures preferred classification to the laws substance, focusing
on its purpose and effects. See United States v. Ward, 448
U. S. 242, 248249 (1980); Kennedy v. Mendoza-Martinez, 372
U. S. 144, 168169 (1963). We have said that only the
clearest proof that a law is punitive based on substantial
factors will be able to overcome the legislative categoriza-
tion. Ward, supra, at 249 (quoting Flemming v. Nestor, 363
U. S. 603, 617 (1960)). I continue to think, however, that this
heightened burden makes sense only when the evidence of
legislative intent clearly points in the civil direction. See
Hudson v. United States, 522 U. S. 93, 113114 (1997) (Sou-
ter, J., concurring in judgment). This means that for me
this is a close case, for I not only agree with the Court that
there is evidence pointing to an intended civil characteriza-
tion of the Act, but also see considerable evidence pointing
the other way.
The Act does not expressly designate the requirements
imposed as civil, a fact that itself makes this different from
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108 SMITH v. DOE

Souter, J., concurring in judgment

our past cases, which have relied heavily on the legislatures

stated label in finding a civil intent. See Hudson, supra, at
103; Kansas v. Hendricks, 521 U. S. 346, 361 (1997); Allen v.
Illinois, 478 U. S. 364, 368 (1986). The placement of the Act
in the States code, another important indicator, see Hen-
dricks, supra, at 361, also leaves matters in the air, for al-
though the section establishing the registry is among the
codes health and safety provisions, which are civil, see
Alaska Stat. 18.65.087 (2000), the section requiring regis-
tration occurs in the title governing criminal procedure, see
12.63.010. What is more, the legislature made written no-
tification of the requirement a necessary condition of any
guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and,
perhaps most significant, it mandated a statement of the re-
quirement as an element of the actual judgment of conviction
for covered sex offenses, see Alaska Stat. 12.55.148 (2000);
Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to en-
forcement, see Hudson, supra, at 103, offenders are obliged,
at least initially, to register with state and local police, see
12.63.010(b), (c), although the actual information so ob-
tained is kept by the States Department of Public Safety, a
regulatory agency, see 18.65.087(a). These formal facts do
not force a criminal characterization, but they stand in the
way of asserting that the statutes intended character is
clearly civil.
The substantial indicators relevant at step two of the
Kennedy-Ward analysis likewise point in different direc-
tions. To start with purpose, the Acts legislative history
shows it was designed to prevent repeat sex offenses and to
aid the investigation of reported offenses. See 1994 Alaska
Sess. Laws ch. 41, 1; Brief for Petitioners 26, n. 13. Ensur-
ing public safety is, of course, a fundamental regulatory goal,
see, e. g., United States v. Salerno, 481 U. S. 739, 747 (1987),
and this objective should be given serious weight in the anal-
yses. But, at the same time, it would be naive to look no
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Souter, J., concurring in judgment

further, given pervasive attitudes toward sex offenders, see

infra this page and 110, n. See Weaver v. Graham, 450
U. S. 24, 29 (1981) (Ex Post Facto Clause was meant to pre-
vent arbitrary and potentially vindictive legislation). The
fact that the Act uses past crime as the touchstone, probably
sweeping in a significant number of people who pose no real
threat to the community, serves to feed suspicion that some-
thing more than regulation of safety is going on; when a leg-
islature uses prior convictions to impose burdens that out-
pace the laws stated civil aims, there is room for serious
argument that the ulterior purpose is to revisit past crimes,
not prevent future ones. See Kennedy, supra, at 169.
That argument can claim support, too, from the severity
of the burdens imposed. Widespread dissemination of of-
fenders names, photographs, addresses, and criminal history
serves not only to inform the public but also to humiliate and
ostracize the convicts. It thus bears some resemblance to
shaming punishments that were used earlier in our history
to disable offenders from living normally in the community.
See, e. g., Massaro, Shame, Culture, and American Criminal
Law, 89 Mich. L. Rev. 1880, 1913 (1991). While the Court
accepts the States explanation that the Act simply makes
public information available in a new way, ante, at 99, the
scheme does much more. Its point, after all, is to send a
message that probably would not otherwise be heard, by se-
lecting some conviction information out of its corpus of penal
records and broadcasting it with a warning. Selection
makes a statement, one that affects common reputation and
sometimes carries harsher consequences, such as exclusion
from jobs or housing, harassment, and physical harm.*

*I seriously doubt that the Acts requirements are less harsh than the
sanctions of occupational debarment that we upheld in Hudson v. United
States, 522 U. S. 93 (1997), De Veau v. Braisted, 363 U. S. 144 (1960), and
Hawker v. New York, 170 U. S. 189 (1898). See ante, at 100. It is true
that the Act imposes no formal proscription against any particular employ-
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110 SMITH v. DOE

Opinion of Stevens, J.

To me, the indications of punitive character stated above

and the civil indications weighed heavily by the Court are in
rough equipoise. Certainly the formal evidence of legisla-
tive intent does not justify requiring the clearest proof
of penal substance in this case, see Hudson, 522 U. S., at
113114 (Souter, J., concurring in judgment), and the sub-
stantial evidence does not affirmatively show with any clar-
ity that the Act is valid. What tips the scale for me is the
presumption of constitutionality normally accorded a States
law. That presumption gives the State the benefit of the
doubt in close cases like this one, and on that basis alone I
concur in the Courts judgment.

Justice Stevens, dissenting in No. 01729 and concurring

in the judgment in No. 011231.*
These two cases raise questions about statutes that impose
affirmative obligations on convicted sex offenders. The
question in No. 01729 is whether the Alaska Sex Offender
Registration Act is an ex post facto law, and in No. 011231

ment, but there is significant evidence of onerous practical effects of being

listed on a sex offender registry. See, e. g., Doe v. Pataki, 120 F. 3d 1263,
1279 (CA2 1997) (noting numerous instances in which sex offenders have
suffered harm in the aftermath of notificationranging from public shun-
ning, picketing, press vigils, ostracism, loss of employment, and eviction,
to threats of violence, physical attacks, and arson); E. B. v. Verniero, 119
F. 3d 1077, 1102 (CA3 1997) (The record documents that registrants and
their families have experienced profound humiliation and isolation as a
result of the reaction of those notified. Employment and employment op-
portunities have been jeopardized or lost. Housing and housing opportu-
nities have suffered a similar fate. Family and other personal relation-
ships have been destroyed or severely strained. Retribution has been
visited by private, unlawful violence and threats and, while such incidents
of vigilante justice are not common, they happen with sufficient frequency
and publicity that registrants justifiably live in fear of them); Brief for
Office of the Public Defender for the State of New Jersey et al. as Amici
Curiae 721 (describing specific incidents).
*[This opinion applies also to No. 011231, Connecticut Dept. of Public
Safety v. Doe, ante, p. 1.]
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Opinion of Stevens, J.

it is whether Connecticuts similar law violates the Due Proc-

ess Clause.
The Courts opinions in both cases fail to decide whether
the statutes deprive the registrants of a constitutionally pro-
tected interest in liberty. If no liberty interest were impli-
cated, it seems clear that neither statute would raise a color-
able constitutional claim. Cf. Meachum v. Fano, 427 U. S.
215 (1976). Proper analysis of both cases should therefore
begin with a consideration of the impact of the statutes on
the registrants freedom.
The statutes impose significant affirmative obligations and
a severe stigma on every person to whom they apply. In
Alaska, an offender who has served his sentence for a single,
nonaggravated crime must provide local law enforcement au-
thorities with extensive personal informationincluding his
address, his place of employment, the address of his em-
ployer, the license plate number and make and model of any
car to which he has access, a current photo, identifying fea-
tures, and medical treatmentat least once a year for 15
years. If one has been convicted of an aggravated offense
or more than one offense, he must report this same informa-
tion at least quarterly for life. Moreover, if he moves, he
has one working day to provide updated information. Reg-
istrants may not shave their beards, color their hair, change
their employer, or borrow a car without reporting those
events to the authorities. Much of this registration infor-
mation is placed on the Internet. In Alaska, the registrants
face appears on a webpage under the label Registered Sex
Offender. His physical description, street address, em-
ployer address, and conviction information are also displayed
on this page.
The registration and reporting duties imposed on con-
victed sex offenders are comparable to the duties imposed
on other convicted criminals during periods of supervised
release or parole. And there can be no doubt that the
[w]idespread public access, ante, at 99 (opinion in No. 01
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112 SMITH v. DOE

Opinion of Stevens, J.

729), to this personal and constantly updated information has

a severe stigmatizing effect. See Brief for the Office of the
Public Defender for the State of New Jersey et al. as Amici
Curiae 721 (providing examples of threats, assaults, loss of
housing, and loss of jobs experienced by sex offenders after
their registration information was made widely available).
In my judgment, these statutes unquestionably affect a con-
stitutionally protected interest in liberty. Cf. Wisconsin v.
Constantineau, 400 U. S. 433 (1971).
It is also clear beyond peradventure that these unique con-
sequences of conviction of a sex offense are punitive. They
share three characteristics, which in the aggregate are not
present in any civil sanction. The sanctions (1) constitute a
severe deprivation of the offenders liberty, (2) are imposed
on everyone who is convicted of a relevant criminal offense,
and (3) are imposed only on those criminals. Unlike any of
the cases that the Court has cited, a criminal conviction
under these statutes provides both a sufficient and a neces-
sary condition for the sanction.
To be sure, there are cases in which we have held that it
was not punishment and thus not a violation of the Ex Post
Facto Clause to deny future privileges to individuals who
were convicted of crimes. See, e. g., De Veau v. Braisted,
363 U. S. 144 (1960) (upholding prohibition of convicted felons
from working for waterfront unions); Hawker v. New York,
170 U. S. 189 (1898) (upholding prohibition of doctors who
had been convicted of a felony from practicing medicine).
Those cases are distinguishable because in each the prior
conviction was a sufficient condition for the imposition of the
burden, but it was not a necessary one. That is, one may be
barred from participation in a union because he has not paid
fines imposed on him. See NLRB v. Allis-Chalmers Mfg.
Co., 388 U. S. 175, 191192 (1967). And a doctor may not
be permitted to practice medicine because she is no longer
competent to do so. See, e. g., N. J. Stat. Ann. 45:121
(West Supp. 2002).
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Opinion of Stevens, J.

Likewise, in Kansas v. Hendricks, 521 U. S. 346 (1997), the

Court held that a law that permitted the civil commitment
of persons who had committed or had been charged with a
sexually violent offense was not an ex post facto law. But
the fact that someone had been convicted was not sufficient
to authorize civil commitment under Kansas law because
Kansas required another proceeding to determine if such a
person suffered from a mental abnormality or personality
disorder which makes the person likely to engage in the
predatory acts of sexual violence. Id., at 352. Nor was
the conviction even a necessary predicate for the commit-
ment. See ibid. (Kansas civil commitment procedures also
applied to individuals charged with a sexually violent offense
but found incompetent to stand for trial, or found not guilty
by reason of insanity or by reason of mental disease or de-
fect). While one might disagree in other respects with Hen-
dricks, it is clear that a conviction standing alone did not
make anyone eligible for the burden imposed by that statute.
No matter how often the Court may repeat and manipulate
multifactor tests that have been applied in wholly dissimilar
cases involving only one or two of these three aspects of
these statutory sanctions, it will never persuade me that the
registration and reporting obligations that are imposed on
convicted sex offenders and on no one else as a result of
their convictions are not part of their punishment. In my
opinion, a sanction that (1) is imposed on everyone who com-
mits a criminal offense, (2) is not imposed on anyone else,
and (3) severely impairs a persons liberty is punishment.
It is therefore clear to me that the Constitution prohibits
the addition of these sanctions to the punishment of persons
who were tried and convicted before the legislation was
enacted. As the Court recognizes, recidivism is the statu-
tory concern that provides the supposed justification for the
imposition of such retroactive punishment. Ante, at 105
(opinion in No. 01729). That is the principal rationale that
underlies the three strikes statute that the Court has up-
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114 SMITH v. DOE

Ginsburg, J., dissenting

held in Ewing v. California, ante, p. 11. Reliance on that

rationale here highlights the conclusion that the retroactive
application of these statutes constitutes a flagrant violation
of the protections afforded by the Double Jeopardy and
Ex Post Facto Clauses of the Constitution.
I think it equally clear, however, that the State may
impose registration duties and may publish registration in-
formation as a part of its punishment of this category of de-
fendants. Looking to the future, these aspects of their pun-
ishment are adequately justified by two of the traditional
aims of punishmentretribution and deterrence. More-
over, as a matter of procedural fairness, Alaska requires its
judges to include notice of the registration requirements in
judgments imposing sentences on convicted sex offenders
and in the colloquy preceding the acceptance of a plea of
guilty to such an offense. See Alaska Rules Crim. Proc.
11(c)(4) and 32(c) (2002). Thus, I agree with the Court
that these statutes are constitutional as applied to post-
enactment offenses.
Accordingly, I would hold that the Alaska statute violates
the constitutional prohibition on ex post facto laws. Be-
cause I believe registration and publication are a permissible
component of the punishment for this category of crimes,
however, for those convicted of offenses committed after the
effective date of such legislation, there would be no separate
procedural due process violation so long as a defendant is
provided a constitutionally adequate trial. I therefore con-
cur in the Courts disposition of the Connecticut case,
No. 011231, and I respectfully dissent from its disposition of
the Alaska case, No. 01729.

Justice Ginsburg, with whom Justice Breyer joins,

dissenting.
As Justice Souter carefully explains, it is unclear
whether the Alaska Legislature conceived of the States Sex
Offender Registration Act as a regulatory measure or as a
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Ginsburg, J., dissenting

penal law. See ante, at 107109 (opinion concurring in judg-

ment). Accordingly, in resolving whether the Act ranks as
penal for ex post facto purposes, I would not demand the
clearest proof that the statute is in effect criminal rather
than civil. Instead, guided by Kennedy v. Mendoza-
Martinez, 372 U. S. 144 (1963), I would neutrally evaluate the
Acts purpose and effects. See id., at 168169 (listing seven
factors courts should consider [a]bsent conclusive evidence
of [legislative] intent as to the penal nature of a statute);
cf. Hudson v. Uni ted States, 522 U. S. 93, 115 (1997)
(Breyer, J., concurring in judgment) ([I]n fact if not in the-
ory, the Court has simply applied factors of the Kennedy
variety to the matter at hand.).1
Measured by the Mendoza-Martinez factors, I would hold
Alaskas Act punitive in effect. Beyond doubt, the Act in-
volves an affirmative disability or restraint. 372 U. S., at
168. As Justice Stevens and Justice Souter spell out,
Alaskas Act imposes onerous and intrusive obligations on
convicted sex offenders; and it exposes registrants, through
aggressive public notification of their crimes, to profound hu-
miliation and community-wide ostracism. See ante, at 109,
and n. (Souter, J., concurring in judgment); ante, at 111112
(Stevens, J., dissenting in No. 01729 and concurring in
judgment in No. 011231).
Furthermore, the Acts requirements resemble historically
common forms of punishment. See Mendoza-Martinez, 372
U. S., at 168. Its registration and reporting provisions are
comparable to conditions of supervised release or parole; its
1
The Mendoza-Martinez factors include [w]hether the sanction in-
volves an affirmative disability or restraint, whether it has historically
been regarded as a punishment, whether it comes into play only on a find-
ing of scienter, whether its operation will promote the traditional aims of
punishmentretribution and deterrence, whether the behavior to which
it applies is already a crime, whether an alternative [nonpunitive] purpose
to which it may rationally be connected is assignable for it, and whether
it appears excessive in relation to the alternative purpose assigned. 372
U. S., at 168169.
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116 SMITH v. DOE

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public notification regimen, which permits placement of the

registrants face on a webpage under the label Registered
Sex Offender, calls to mind shaming punishments once used
to mark an offender as someone to be shunned. See ante,
at 111112 (Stevens, J., dissenting in No. 01729 and concur-
ring in judgment in No. 011231); ante, at 109 (Souter, J.,
concurring in judgment).
Telling too, as Justice Souter observes, past crime
alone, not current dangerousness, is the touchstone trig-
gering the Acts obligations. Ibid. (opinion concurring in
judgment); see ante, at 112113 (Stevens, J., dissenting in
No. 01729 and concurring in judgment in No. 011231).
This touchstone adds to the impression that the Act retribu-
tively targets past guilt, i. e., that it revisit[s] past crimes
[more than it] prevent[s] future ones. Ante, at 109 (Sou-
ter, J., concurring in judgment); see Mendoza-Martinez, 372
U. S., at 168.
Tending the other way, I acknowledge, the Court has
ranked some laws civil and nonpunitive although they impose
significant disabilities or restraints. See, e. g., Flemming v.
Nestor, 363 U. S. 603 (1960) (termination of accrued disability
benefits payable to deported resident aliens); Kansas v. Hen-
dricks, 521 U. S. 346 (1997) (civil confinement of mentally ill
sex offenders). The Court has also deemed some laws non-
punitive despite punitive aspects. See United States v.
Ursery, 518 U. S. 267, 290 (1996).
What ultimately tips the balance for me is the Acts ex-
cessiveness in relation to its nonpunitive purpose. See
Mendoza-Martinez, 372 U. S., at 169. As respondents con-
cede, see Brief for Respondents 38, the Act has a legitimate
civil purpose: to promote public safety by alerting the public
to potentially recidivist sex offenders in the community.
See ante, at 102103 (majority opinion). But its scope nota-
bly exceeds this purpose. The Act applies to all convicted
sex offenders, without regard to their future dangerousness.
And the duration of the reporting requirement is keyed not
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Ginsburg, J., dissenting

to any determination of a particular offenders risk of re-

offending, but to whether the offense of conviction qualified
as aggravated. The reporting requirements themselves are
exorbitant: The Act requires aggravated offenders to engage
in perpetual quarterly reporting, even if their personal infor-
mation has not changed. See ante, at 90. And meriting
heaviest weight in my judgment, the Act makes no provision
whatever for the possibility of rehabilitation: Offenders can-
not shorten their registration or notification period, even on
the clearest demonstration of rehabilitation or conclusive
proof of physical incapacitation.2 However plain it may be
that a former sex offender currently poses no threat of recid-
ivism, he will remain subject to long-term monitoring and
inescapable humiliation.
John Doe I, for example, pleaded nolo contendere to a
charge of sexual abuse of a minor nine years before the
Alaska Act was enacted. He successfully completed a treat-
ment program, and gained early release on supervised proba-
tion in part because of his compliance with the programs
requirements and his apparent low risk of reoffense. Brief
for Respondents 1. He subsequently remarried, established
a business, and was reunited with his family. Ibid. He was
also granted custody of a minor daughter, based on a courts
determination that he had been successfully rehabilitated.
See Doe I v. Otte, 259 F. 3d 979, 983 (CA9 2001). The courts
determination rested in part on psychiatric evaluations con-
cluding that Doe had a very low risk of re-offending and is
not a pedophile. Ibid. (internal quotation marks omitted).
Notwithstanding this strong evidence of rehabilitation, the
Alaska Act requires Doe to report personal information to
the State four times per year, and permits the State publicly

2
For the reasons stated by Justice Souter, see ante, at 109110,
n. (opinion concurring in judgment), I do not find the Courts citations to
Hawker v. New York, 170 U. S. 189 (1898), and De Veau v. Braisted, 363
U. S. 144 (1960), see ante, at 103104 (majority opinion), convincingly re-
sponsive to this point.
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118 SMITH v. DOE

Ginsburg, J., dissenting

to label him a Registered Sex Offender for the rest of his

life.
Satisfied that the Act is ambiguous in intent and punitive
in effect, I would hold its retroactive application incompati-
ble with the Ex Post Facto Clause, and would therefore af-
firm the judgment of the Court of Appeals.