Smith v. Doe, 538 U.S. 84; 123 S. Ct. 1140; 155 L. Ed. 2d 164 (2003)

Facts—The Alaska Sex Offender Registration Act required a sex offender or child kidnapper to register with the state; nonaggravated offenders had to provide this basis on a yearly basis and aggravated offenders quarterly. The information was placed on the Internet. Two sex offenders who had been released from prison and completed rehabilitative programs challenged this law as an illegal ex post facto law, which Article I, Section 10 of the U.S. Constitution prohibited. The U.S. District Court granted summary judgment for the state, but the U.S. Ninth Circuit struck the law down as a punitive ex post facto law.

Question—Is the Alaska Sex Offender Registration Act, which requires filing of information by former sex offenders and posts this information on the Internet, an unconstitutional ex post facto law?

Decision—No.

Reasons—J. Kennedy (6–3). The requirements of the Alaska Sex Offender Registration Act are retroactive. If the law’s primary purpose was punitive, then it would be an ex post facto law, but if its purpose were “civil and nonpunitive,” it could still have a punitive effect. Alaska expressed as its primary purpose the interest in protecting the public safety, and the codification of the notification provisions of the law appears to confirm this. The seven factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) provide a useful framework for deciding the effects of a law. The Court finds differences between this law and early “shaming punishments,” or banishments. Here names are not posted for the purpose of public ridicule; indeed, the information posted on the Internet is already available in criminal records. Moreover, this law does not impose physical restraints on offenders or limit the activities in which they may engage. Individuals are not required to register in person, and they may move about as they want. The state did not choose to tailor the time that an individual must continue reporting to individual offenses or to judgments of continuing dangerousness, but sex offenders have been shown to have high rates of recidivism, and individuals desiring information of sex offenders must take positive steps to get it, making the notification system a “passive one.” The Court does not need to decide “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 objectives.”

J. Thomas, concurring, argued that the Court should limit its review to whether making information available is punitive and not to a choice of the means used, namely posting on the Internet.

J. Souter, concurring, argued that it was not easy to separate the criminal and civil consequences of this law, but thought that, given the relative “equipoise” presented, “What tips the scale for me is the presumption of constitutionality normally accorded a State’s law.”

J. Stevens, dissenting, believed that the law imposed significant affirmative obligations on sex offenders that brought about “a severe stigma on every person to whom they apply.” Three facts pointed to the punitive nature of the laws—they (1) constitute a severe deprivation of the offender’s liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals.”

J. Ginsburg, dissenting, likened the law to shunning and believed that it was excessive “in relation to its nonpunitive purpose.” She noted that in the case at hand it was applied to an individual who had remarried, established a business, had been awarded custody of a minor daughter, and whom a court had determined to have been rehabilitated.

Note—In a companion case, Connecticut Department of Public Safety v. John Doe (2003), the Court rejected a challenge to so-called “Megan’s laws.”