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Doe v. Pataki, 120 F.3d 1263 (2d Cir. 08/22/1997)



[Editor's note: footnotes (if any) trail the opinion]

CORRECTED OPINION

[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[2] August Term 1996

[3] Nos. 1237, 1238

[4] Argued: January 6, 1997

[5] Decided: August 22, 1997

[6] Docket Nos. 96-6249(L), -6269

[7] JOHN DOE, RICHARD ROE and SAMUEL POE, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees-Cross-Appellants,

v.

[8] GEORGE PATAKI, in his official capacity as Governor of the State of New York; PAUL SHECHTMAN, in his official capacity as Commissioner of the New York State Department of Criminal Justice Services; THE NEW YORK STATE DEPARTMENT OF CRIMINAL JUSTICE SERVICES; BRION TRAVIS, in his official capacity as Chairman of the New York State Board of Parole; THE NEW YORK STATE DIVISION OF PAROLE; GEORGE SANCHEZ, in his official capacity as Commissioner of the New York State Division of Probation; THE NEW YORK STATE DIVISION OF PROBATION; ELIZABETH M. DEVANE, in her official capacity as Chairperson of the New York State Board of Examiners of Sex Offenders; THE NEW YORK STATE BOARD OF EXAMINERS OF SEX OFFENDERS, Defendants-Appellants-Cross-Appellees.

[9] Before: FEINBERG, NEWMAN and McLAUGHLIN, Circuit Judges.

[10] Appeal and cross-appeal from the September 26, 1996, judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge) permanently enjoining defendants, on ex post facto grounds, from applying the notification provisions of New York's Sex Offender Registration Act to persons convicted prior to its effective date, and denying injunctive relief against the registration provisions of the Act.

[11] Affirmed in part, reversed in part, and remanded for further proceedings.

[12] Christine E. Morrison, Asst. Atty. Gen., New York, N.Y., (Dennis C. Vacco, N.Y. State Atty. Gen., Thomas D. Hughes, Asst. Solicitor Gen., Andrea Oser, Asst. Atty. Gen., New York, N.Y., on the brief), for defendants-appellants-cross-appellees.

[13] Thomas M. O'Brien, New York, N.Y. (Susan L. Hendricks, Laura R. Johnson, The Legal Aid Society, New York, N.Y.; Norman Siegel, Christopher Dunn, N.Y. Civil Liberties Union Foundation, New York, N.Y., on the brief), for plaintiffs-appellees-cross-appellants.

[14] Daniel S. Alter, Asst. U.S. Atty., New York, N.Y. (Mary Jo White, U.S. Atty., Gideon A. Schor, Asst. U.S. Atty., New York, N.Y., on the brief), for amicus curiae United States of America).

[15] (Eliot L. Spitzer, Constantine & Partners, New York, N.Y.; Dennis F. Saffran, New York, N.Y.; Barry M. Benjamin, New York, N.Y., submitted a brief for amici curiae American Alliance for Rights and Responsibilities, Protecting Our Children, Justice for All, Parents of Murdered Children of New York State, and Take Back New York).

[16] (Daniel L. Feldman, Brooklyn, N.Y., submitted a brief for amicus curiae Daniel L. Feldman, Member of the New York State Assembly).

[17] JON O. NEWMAN, Circuit Judge:

[18] This appeal concerns the constitutionality of New York's version of "Megan's Law." *fn1 The statute requires sex offenders, after serving their sentences, to register with law enforcement officials, and provides for various degrees of public notification of the identity and address of these offenders. The specific issue is whether the statute inflicts "punishment," in which event the Ex Post Facto Clause would prohibit its application to those who committed their offenses prior to enactment of the statute.

[19] The three plaintiffs, proceeding under pseudonyms, effectively represent all others similarly subject to the retroactive application of the registration and public notification provisions of New York's Sex Offender Registration Act ("SORA" or "the Act"), N.Y. Correct. Law 168-168v (McKinney Supp. 1997). *fn2 They challenged the Act on ex post facto and other constitutional and statutory grounds. On cross-motions for summary judgment by the plaintiffs and the defendants -- the Governor of New York and other state officials and agencies responsible for the implementation and operation of the SORA -- the District Court for the Southern District of New York (Denny Chin, Judge) upheld retroactive application of the Act's registration requirement, but ruled that similar application of the Act's community notification provisions constituted "punishment" in violation of the Ex Post Facto Clause. See Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996) ("Doe v. Pataki II"). Judge Chin permanently enjoined enforcement of the notification provisions of the Act against persons whose crimes occurred before January 21, 1996, the effective date of the Act.

[20] Both parties appeal from the District Court's judgment, entered on September 26, 1996. Although the question is not free from doubt, we conclude that neither the registration nor the notification provisions of the Act constitute "punishment" for purposes of the Ex Post Facto Clause, and that both sets of provisions may be imposed upon offenders convicted before the Act's effective date. We therefore affirm in part, reverse in part, and remand for further consideration of plaintiffs' remaining claims.

[21] Background

[22] The seriousness of the harm that sex offenders' actions cause to society and the perception, supported by some data, that such offenders have a greater probability of recidivism than other offenders have recently combined to prompt the enactment of numerous laws across the country directed specifically toward persons convicted of crimes involving sexual conduct. Studies have shown that sex crimes are widespread, see, e.g., Brief of Amicus Curiae United States at 4 (citing Bureau of Justice Statistics, U.S. Dept. of Justice, Fact Sheet, National Crime Victim Survey Redesign (Oct. 30, 1994) (table) (312,000 rapes and attempted rapes and 173,000 other sexual assaults in 1993)), and that their impact on both the victim and society as a whole is devastating, see, e.g., id. at 5-6 (citing John Briere & Marsha Runtz, Childhood Sexual Abuse: Long-Term Sequelae and Implications for Psychological Assessment, 8 J. Interpersonal Violence 312, 324 (Sept. 1993) (noting that molested children are likely to develop severe psychosocial problems) and Alphie Kohn, Shattered Innocence, Psychology Today, Feb. 1987, at 54, 58 (noting that sexually abused boys are more likely than non-abused boys to become sex offenders themselves, and that sexually abused girls are more likely than non-abused girls to have children who are abused)).

[23] Some studies have also demonstrated that, as a group, convicted sex offenders are much more likely than other offenders to commit additional sex crimes. See, e.g., id. at 8-9 (citing studies reporting that rapists repeat their offenses at rates as high as 35%). Although other studies have reported that sex offenders as a category do not have a higher rate of recidivism than other categories of offenders, see generally Abril R. Bedarf, Comment, Examining Sex Offender Community Notification Laws, 83 Cal. L. Rev. 885, 893-98 (1995), the plaintiffs did not challenge the defendants' and the amici's recidivism statistics in the District Court, which accepted them as true for the purpose of resolving the parties' cross-motions for summary judgment. Pataki II, 940 F. Supp. at 606. We therefore also accept the validity of these figures on this appeal.

[24] I. The New York Statute

[25] New York's version of "Megan's Law," the SORA, was passed on July 25, 1995, and became effective on January 21, 1996. It requires individuals convicted of certain listed sex offenses to register with law enforcement officials, and it authorizes those officials, in some instances, to notify the public of, or provide the public with access to, the identity, whereabouts, and background of registrants. The legislature articulated two goals served by the SORA: (1) protecting members of the community, particularly their children, by notifying them of the presence of individuals in their midst who may present a danger, and (2) enhancing law enforcement authorities' ability to investigate and prosecute future sex crimes.

[26] The Act applies to sex offenders incarcerated or on parole or probation on its effective date, as well as to those sentenced thereafter, thereby imposing its obligations on many persons whose crimes were committed prior to the effective date. The three plaintiffs in this case committed their sex crimes prior to this date, but are nonetheless subject to its requirements. *fn3 The plaintiffs claim that the Act, by forcing them to register and by notifying the community of their background and whereabouts, increases the amount of "punishment" that was, or could have been, imposed upon them at the time of their offense, thereby violating the Ex Post Facto Clause. To resolve this claim, we begin by examining the SORA in detail.

[27] A. Persons covered by the Act

[28] All convicted "sex offenders," as defined under the Act, are subject to its requirements. The category of sex offenders includes any person who is convicted of a "sex offense," N.Y. Correct. Law Section(s) 168-a(2), or a "sexually violent offense," id. Section(s) 168-a(3). See id. Section(s) 168-a(1). "Sex offenses" include, for example, rape in the second or third degree, sodomy in the second or third degree, sexual abuse in the second degree, and attempts. See id. Section(s) 168-a(2). "Sexually violent offenses" include, for example, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, and attempts. See id. Section(s) 168-a(3). These two categories, including attempts, encompass 36 offenses, some of which do not require proof of sexual contact, see, e.g., id. Section(s) 168-a(2)(a) (kidnapping or unlawful imprisonment of victim under age of seventeen)), and seven of which are misdemeanors. First time offenders are included within the coverage of the Act.

[29] B. Registration

[30] Any person convicted of a sex offense or a sexually violent offense must register with the Division of Criminal Justice Services ("DCJS") as a sex offender within ten days of his discharge, release, or parole. See id. Section(s) 168-f(1). *fn4 To register, sex offenders must provide such identifying information as name, date of birth, sex, race, height, weight, eye color, driver's license number, and home address. They must also provide a description of the offense of conviction, the date of conviction, and the sentence imposed, as well as a photograph and fingerprints. Id. Section(s) 168-b(1), 168-i. For each sex offender subject to the registration requirement, the DCJS must establish and maintain a file containing the required information. Id. Section(s) 168-b.

[31] The duration and frequency of the registration obligations depend upon whether the sex offender is classified as a "sexually violent predator," as defined by sections 168-a(7) and 168-l(6)(c). *fn5 An offender who is not considered a sexually violent predator must register on a yearly basis for ten years. Id. Section(s) 168-f(1), 168-h. On each anniversary of the offender's initial registration date during this ten year period, the offender must mail a form verifying his current address to the DCJS. Id. Section(s) 168-f(2). Additionally, the offender must register with the DCJS within ten days prior to any change of address. Id. Section(s) 168-f(4).

[32] Offenders classified as sexually violent predators are subject to additional requirements. First, they must register for a minimum of ten years and are potentially subject to lifetime registration, unless the sentencing court determines, upon the offender's petition for relief, see id. Section(s) 168-o, that the offender "no longer suffers from a mental abnormality that would make him likely to engage in a predatory sexually violent offense." Id. Section(s) 168-h. Second, sexually violent predators must register quarterly, instead of annually, and must do so in person, rather than by mail. Id. Section(s) 168-f(3).

[33] As noted, any offender required to register "may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court." Id. Section(s) 168-o. When the court receives such a petition, it is required to notify the Board of Examiners of Sex Offenders ("Board"), an entity created by the Act to administer and implement several of its provisions, see id. Section(s) 168-l, and to request an updated report from the Board pertaining to the petitioning offender, see id. Section(s) 168-l(7). The court may then grant or deny the relief sought.

[34] All offenders required to register must do so or risk a criminal penalty. An offender who fails to register is guilty of a class A misdemeanor for the first offense, and is guilty of a class D felony for each subsequent offense. Id. Section(s) 168-t.

[35] C. Notification

[36] The Act provides for three levels of notification to law enforcement agencies and/or the public based on an assessment of the offender's risk of recidivism, termed "re-offense," and the degree of harm he potentially presents. Id. Section(s) 168-l(6). The basic principle is simple: the greater "the risk of a repeat offense . . . and the threat posed to the public safety," id. Section(s) 168-l(5), the greater the extent of the notification, as to both who will receive the offender's registration information and the amount of information disseminated or made publicly accessible.

[37] The five-member Board, composed of "experts in the field of the behavior and treatment of sex offenders" from the Division of Parole and the Department of Probation, id. Section(s) 168-l(1), is charged with the responsibility of developing guidelines and procedures to assess the risk of re-offense and the threat posed, id. Section(s) 168-l(5). The Act specifically lists some of the factors upon which the risklevel guidelines should be based: "criminal history factors indicative of high risk of repeat offense"; "conditions of release that minimize risk [of] reoffense, including . . . whether the sex offender is under supervision [or] receiving counseling, therapy or treatment"; "physical conditions that minimize risk of re-offense, including . . . advanced age or debilitating illness"; "whether psychological or psychiatric profiles indicate a risk of recidivism"; "the sex offender's response to treatment"; "recent behavior, including behavior while confined"; "recent threats or gestures against persons or expressions of intent to commit additional offenses"; and "review of any victim impact statement." Id.

[38] In accordance with the Act's mandate, the Board has developed a set of "Risk Assessment Guidelines" for determining an offender's level of notification. See Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (Jan. 1996) ("Guidelines"). This detailed, point-based system -- somewhat resembling the federal Sentencing Guidelines -- assigns numerical values to fourteen risk factors, placed into four different categories (relating to the offender's current offense, criminal history, post-offense behavior, and planned release environment). *fn6 A presumptive "risk level" *fn7 is calculated for an offender by adding up the points assigned to the offender in each category. The Board "may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [G]uidelines." Id. at 4; cf. 18 U.S.C. Section(s) 3553(b) (departure standard for federal Sentencing Guidelines).

[39] For all sex offenders sentenced or released from a state correctional or mental institution after the effective date of the Act, the original sentencing court has the responsibility, at the time of the offender's discharge, release, or parole, of determining the appropriate risk level. N.Y. Correct. Law Section(s) 168-d(3), 168-n(2). *fn8 However, the court cannot make this determination until it has received from the Board a recommendation regarding the proper risk level for a particular offender. Id. Section(s) 168-l(6), 168-n(2). An offender who wishes to challenge the Board's recommended risk level may "appear and be heard," and, if necessary, have appointed counsel. Id. Section(s) 168-d(3); see id. Section(s) 168-n(3). Although the Act is silent on the degree of deference a sentencing court must accord to the Board's recommendation during such a hearing, one New York court has ruled that the Board's risk-level recommendations should be accepted by the sentencing court unless arbitrary and capricious. See People v. Ross, 169 Misc. 2d 308, 312, 646 N.Y.S.2d 249, 252 (Sup. Ct. New York County 1996). Ross also ruled that an offender challenging the Board's assessment before the sentencing court bears the burden of proving that the Board has erroneously applied the Guidelines. Id., 646 N.Y.S.2d at 252.

[40] If an offender's risk of re-offense is "low," he is assigned a "level-one" designation. N.Y. Correct. L. Section(s) 168-l(6)(a). For level-one offenders, the offender's registration information is supplied, without request, only to the law enforcement agency having jurisdiction over the offender. Id. However, the Act also permits limited information concerning level-one offenders to be obtained through a special "900" telephone number; for a small fee, anyone can call this number to inquire whether a particular individual is listed in the central registry maintained by the DCJS. Id. Section(s) 168-p. Callers cannot obtain any information through this service unless they first provide specified information that reasonably identifies the offender, such as, an exact street address, a birthdate, a driver's license number, along with additional information, such as a social security number or a physical description. *fn9 Id. Section(s) 168-p(1). When the 900 number is called, a recorded message advises the caller that the caller's telephone number will be recorded by the DCJS, that a fee will be assessed for the call, that the caller must provide identification and a current address before the request will be processed, that the 900 number is not a crime "hotline," and that it is illegal to use any information obtained through the 900 number to commit a crime against, or to engage in illegal discrimination or harassment against, any listed person. Id. Section(s) 168-p(2). If a caller seeks information on an identified person who has been designated as a level-one offender, the defendants assert, Brief for Appellants at 24, and the plaintiffs do not dispute, that the caller will be informed only that the offender is listed in the central registry and that the offender's risk level is level one. The Act authorizes the state attorney general, a local district attorney, or "any person aggrieved by the misuse of the number" to bring a civil action for injunctive relief against any person or persons "engaged in a pattern or practice of misuse of the `900' number." N.Y. Correct. Law Section(s) 168-p(3). The Act additionally provides that persons misusing information provided through this service will be subject to a fine. Id.

[41] If an offender's risk of re-offense is "moderate," he is assigned a "level-two" designation. Id. Section(s) 168-l(6)(b). Registration information for this category of offenders can be disseminated to the public in two ways. First, callers can obtain such information through the 900 number. Second, the offender's registration information will be forwarded by the DCJS to the law enforcement authority having jurisdiction over the offender; that authority may then, at its discretion, disseminate relevant portions of this information to "any entity with vulnerable populations related to the nature of the offense committed by such sex offender." Id. The distributed information includes the offender's approximate address based on the zip code, a photograph, background information regarding the offense of conviction and the offender's modus operandi, and a description of any special conditions of parole or probation. Although the term "entity with vulnerable populations" is not defined in the Act, the parties assume that it refers to organizations such as child-care centers, schools, or women's shelters. After receiving registration information on an offender from local law enforcement officials, such organizations may then "disclose or further disseminate such information at their discretion." Id.

[42] If an offender's risk of re-offense is "high," he is "deemed a sexually violent predator" and is assigned a "level-three" designation. Id. Section(s) 168-l(6)(c). For this category of offenders, registration information is made available to the public in three ways. First, callers can obtain such information through the 900 number. Second, the DCJS will forward the offender's registration information to the law enforcement authority having jurisdiction over the offender; that authority may then disseminate this information -- including the offender's exact street address -- to any entity with vulnerable populations. Id. As noted above, such an entity may then further disseminate the information it receives at its discretion. Finally, registration information on all level-three offenders will be included in a "subdirectory of sexually violent predators," which contains, among other things, the exact street address of the offender, a photograph, his name and physical description, general background information relating to the crime of conviction, the offender's modus operandi, the type of victim targeted, and any special conditions of the offender's parole or probation. Id. Section(s) 168-q(1); see id. Section(s) 168-l(6)(c). The subdirectory will categorize sexually violent predators by county and zip code, and copies of the subdirectory will be distributed to local police departments. Anyone who "in writing expresses a purpose" will be allowed to look through the subdirectory. Id. Section(s) 168-q(1). The Act specifically provides that anyone who uses information obtained through the subdirectory "in violation of the law" will be subject to a fine and that unauthorized removal or duplication of the subdirectory is prohibited. Id. Section(s) 168-q(2).

[43] To summarize, (1) registration information concerning level-one offenders is provided to law enforcement officials and is potentially available in a limited fashion to the public through the 900 phone number; (2) registration information concerning level-two offenders is available to the public through the above route as well as through possible dissemination to organizations with vulnerable populations at the discretion of law enforcement officials, and to other members of the community at the discretion of organizations with vulnerable populations; and (3) registration information concerning level-three offenders is available to the public through all of the above routes as well as through the sexually violent predator subdirectory found at local police stations.

[44] In addition to the procedural safeguards to prevent misuse or abuse of registration information already mentioned, see, e.g., id. Section(s) 168-p(3) (regarding 900 number) and id. Section(s) 168-q(2) (regarding subdirectory), the Act generally provides that "[t]he unauthorized release of any information required by this article shall be a class B misdemeanor." Id. Section(s) 168-u. Moreover, as noted previously, all offenders required to register under the Act -- and thus subject to some form of community notification or public access -- can petition the original sentencing court to be relieved of the duty to register, and thereby freed from being the subject of further notification pursuant to the Act. Id. Section(s) 168-o.

[45] II. District Court Proceedings

[46] Plaintiffs filed their complaint in March 1996, contending that the registration and notification provisions of the SORA violated various statutory and constitutional safeguards, including the Ex Post Facto Clause. Relying solely on the ex post facto argument, the District Court first issued a preliminary injunction, see Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996) (Doe v. Pataki I), and then issued a permanent injunction on the parties' cross-motions for summary judgment, see Doe v. Pataki II, 940 F. Supp. 603 (S.D.N.Y. 1996), enjoining the defendants from enforcing the public notification provisions of the Act against persons who committed their offenses before January 21, 1996. In the latter opinion, the Court also concluded that retrospective application of the Act's registration requirements did not violate the ex post facto prohibition. See id. at 629-30. The Court did not reach the plaintiffs' remaining statutory and constitutional arguments in either opinion.

[47] The parties and the District Court agreed that the central question in this case is whether, as the plaintiffs contend, the Act increases the "punishment" for sex offenses, or whether, as the defendants contend, the Act merely regulates by protecting the public. See id. at 612. In a thoughtful decision, Judge Chin canvassed numerous decisions of courts around the country presenting issues relevant to the resolution of this question, including state and federal court decisions discussing whether retroactive application of sex offender registration or notification laws would violate the Ex Post Facto Clause, *fn10 and Supreme Court decisions discussing the more general question of whether a sanction or a proceeding was sufficiently "punitive" or "criminal" to invoke the protections of the Ex Post Facto Clause, the Double Jeopardy Clause, the Excessive Fines Clause, the Cruel and Unusual Punishment Clause, or the procedural safeguards of the Fifth and Sixth Amendments. *fn11 Endeavoring to extract unifying principles from these decisions, the District Court concluded that to resolve the question of whether registration or notification constituted punishment for ex post facto purposes, it would analyze all pertinent circumstances by grouping them into four areas: (1) legislative intent, (2) statutory design, (3) historical analogies, and (4) effect of the statute. Doe v. Pataki II, 940 F. Supp. at 620. The Court cautioned that these factors should not be considered as a "`rigid series of hurdles,'" but must rather be evaluated in a "`less structured fashion.'" Id. (quoting W.P. v. Poritz, 931 F. Supp. 1199, 1209 (D.N.J. 1996)).

[48] Applying its four factor test to the notification provisions of the Act, the Court concluded that they increased the plaintiff's punishment in violation of the Ex Post Facto Clause. First, although acknowledging that the legislature's stated intent and the Act's apparent purposes were to protect the public from potentially dangerous sex offenders and to facilitate law enforcement efforts concerning future sex crimes, the Court concluded that the state legislature also intended to punish sex offenders, citing as support several statements made by legislators during floor debates purportedly evidencing their hostility toward, and desire to punish, sex offenders. Id. at 604-05. Second, the Court found that the Act's design "contains classic indicia of a punitive scheme": the notification provisions are triggered by the commission of a crime, provide for the sentencing judge to determine the level of notification, permit the judge to consider victim-impact statements, and broadly cover 36 offenses and first-time offenders. Id. at 605. Third, the Court ruled that historical considerations revealed the punitive nature of public notification, which Judge Chin called the "modern-day equivalent of branding and banishment." Id. Finally, the Court concluded that "[p]erhaps more clearly than anything else, the effects of community notification show that these provisions are punitive." Id. at 626. Notification, he observed, results in an affirmative disability with nearly "`unlimited'" consequences, interferes with offenders' ability to rehabilitate, and serves the traditional goals of punishment -- deterrence, retribution, and incapacitation. Id. at 626-29.

[49] Applying the same test to the registration requirements, the Court concluded that they did not impose additional punishment on previously convicted sex offenders. Registration, Judge Chin stated, "plainly serves the valid regulatory goals of the Act to protect the public and aid law enforcement," id. at 629; "can be accomplished privately and [] does not suffer from the same excesses in design that exist with respect to notification," id. at 630; "has not historically been considered punishment," id.; and, "[m]ost significantly, [] does not impose a substantial affirmative disability or restraint" upon offenders, id.

[50] Both parties appeal from the District Court's judgment. The defendants challenge the invalidation of retroactive application of the SORA's notification provisions, and the plaintiffs challenge upholding retroactive application of the Act's registration provisions.

[51] Discussion

[52] Although the "presumption against retroactive legislation is deeply rooted in our jurisprudence," Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), the Ex Post Facto Clause of the Constitution "applies only to penal statutes which disadvantage the offender affected by them," Collins v. Youngblood, 497 U.S. 37, 41 (1990) (emphasis added); see U.S. Const. Art. I, Section(s) 10, cl. 1 ("No State shall . . . pass any . . . ex post facto Law . . . ."). *fn12 "Ex post facto" is a term of art applicable only to "punishment" -- legislative action that retroactively "punishes as a crime an act previously committed, which was innocent when done," "makes more burdensome the punishment for a crime, after its commission," or "deprives one charged with crime of any defense available according to law at the time when the act was committed." Beazell v. Ohio, 269 U.S. 167, 169-70 (1925); see Collins, 497 U.S. at 43 ("The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause."). The question before us concerns the second Beazell category: whether notification and registration under the SORA "increase the punishment for criminal acts." Id.; see California Department of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995) ("[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of `disadvantage,' . . . but on whether any such change . . . increases the penalty by which a crime is punishable.").

[53] I. "Punishment" in the Ex Post Facto Analysis

[54] "Punishment" -- along with its many cognates and synonyms, for instance, "penal," "punitive," "penalty," and "criminal" -- is an imprecise concept with meanings that vary depending on the purpose for which the concept is defined. A standard dictionary definition states that to "punish" is to "impose a penalty (as of pain, suffering, shame, strict restraint, or loss) upon for some fault, offense, or violation." Webster's Third New International Dictionary 1843 (1993). Somewhat less circular but perhaps no more illuminating definitions can be found in the legal literature, see, e.g., Note, Toward a Constitutional Definition of Punishment, 80 Colum. L. Rev. 1667, 1678-81 (1980) ("Punishment is the deprivation of legal rights in response to a prior offense for the purpose of deterrence and social condemnation."), and the philosophical literature, see, e.g., Joel Feinberg, The Expressive Function of Punishment, reprinted in The Philosophy of Law 636 (4th ed. 1991) ("Punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, either on the part of the punishing authority himself or of those in whose name the punishment is imposed.") (quotations omitted).

[55] For the precise purpose of determining whether a retroactively imposed burden constitutes "punishment" within the meaning of the Ex Post Facto Clause, the Supreme Court has instructed that we should focus our attention on the twin purposes to be served by this constitutional prohibition. First, the Clause ensures that legislative acts "give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29 (1981). Second, the Clause erects a barrier to legislative abuses in the form of arbitrary or vindictive legislation directed against disfavored groups. See Miller v. Florida, 482 U.S. 423, 429 (1987). The legislature's "responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf, 511 U.S. at 266; see Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 322 (1866) (Ex Post Facto Clause adopted because "`the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment'") (quoting Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137 (1810)).

[56] Since at least 1898, the Supreme Court has focused upon the intent underlying the enactment of, or the end served by, the challenged sanction as the touchstone of the ex post facto analysis. In Hawker v. New York, 170 U.S. 189 (1898), a physician, convicted of the then-felony crime of abortion in 1878, contended that a law, passed by the legislature in 1893, that prohibited persons who had been convicted of a felony from practicing medicine violated the Ex Post Facto Clause. The Court rejected this challenge since "[t]he state [was] not seeking to further punish a criminal, but only to protect its citizens from physicians of bad character." Id. at 196. Although, as the Court acknowledged, the "form in which this legislation is cast suggests the idea of the imposition of an additional punishment for past offenses," id., the Court concluded that the law did not intrude upon the ex post facto prohibition because it is more properly "regarded as . . . prescribing the qualifications for the duties to be discharged and the position to be filled, and naming what is deemed to be . . . appropriate evidence of such qualifications," id. at 200.

[57] The approach in Hawker, focusing upon the intended or apparent purpose served by the retroactively imposed disability, has been repeatedly affirmed since 1898. As Chief Justice Warren summarized for the four-Justice plurality in Trop v. Dulles, 356 U.S. 86, 96 (1958), "[i]n deciding whether or not a law is penal [for the purpose of ex post facto analysis], this Court has generally based its determination upon the purpose of the statute." Thus, if a legislative burden is imposed "for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal." Id. However, if a disability is imposed "not to punish, but to accomplish some other legitimate governmental purpose," then it has been considered "nonpenal." Id.

[58] The Court continued this approach in DeVeau v. Braisted, 363 U.S. 144 (1960), which upheld a statute that prohibited unions from soliciting or collecting dues from workers on the New York waterfront if any officer or agent of the union had been previously convicted of a felony. The law thus effectively barred convicted felons from working for the unions. Writing for the four-Justice plurality, Justice Frankfurter reaffirmed the intentand purpose-centered approach of Hawker and Trop:

[59] The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.

[60] Id. at 160 (emphasis added). Because the proof was "overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront," the law was upheld. Id.

[61] In more recent decisions, the Court has articulated a two-part approach for determining whether legislation should be classified as punitive. In United States v. Ward, 448 U.S. 242 (1980), the Court considered whether a "civil penalty" imposed for discharging oil into navigable waters should be considered "penal" for the purpose of triggering the safeguards of the Fifth and Sixth Amendments. In concluding that the penalty was not "penal," the Court said:

[62] Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground."

[63] Id. at 248-49 (citations omitted) (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)). Thus, in accordance with Hawker, Trop, and DeVeau, the Court in Ward considered the threshold and primary issue in the ex post facto analysis to be the legislature's intent in enacting the challenged sanction. Ward, however, made explicit what was only implicit in those earlier decisions -- that even a sanction intended to serve nonpunitive, regulatory goals can be "transfor[med]" into a criminal penalty if the sanction is "so punitive either in purpose or effect." Id. at 249 (quotations omitted). See Montana v. Kurth Ranch, 511 U.S. 767, 777 (1994) ("[T]he legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character.")

[64] Subsequent decisions in the double jeopardy and the ex post facto contexts have adhered to the two stage inquiry set out by Ward. In United States v. Ursery, 116 S. Ct. 2135 (1996), the Court considered the question of whether the purportedly "civil" forfeiture of property used to facilitate marijuana violations constituted a second punishment within the meaning of the Double Jeopardy Clause. The Court explained its approach as follows:

[65] First, we ask whether Congress intended proceedings under [the challenged forfeiture statutes] to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to "persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature," despite Congress' intent.

[66] Id. at 2147 (emphasis added) (citations omitted) (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 366 (1984)). Echoing Ward, the Court emphasized that, at the second stage, the party challenging the law must show by "the clearest proof" that the sanctions imposed "are so punitive in form and effect as to render them criminal despite Congress' intent to the contrary." Id. at 2148 (emphasis added).

[67] This Circuit has recently ruled that the two-part inquiry used by Ursery in the double jeopardy context is equally appropriate for determining whether a sanction constitutes punishment for purposes of ex post facto analysis. See United States v. Certain Funds, 96 F.3d 20, 26 (2d Cir. 1996). That equivalence has been implicitly approved by the Supreme Court. In the recent decision of Kansas v. Hendricks, 117 S. Ct. 2072 (1997), the Court ruled that a statute requiring the involuntary commitment of "mentally abnormal" persons previously convicted of sex crimes did not impose punishment in violation of either the Double Jeopardy Clause or the Ex Post Facto Clause. The Court undertook only a single analysis to answer both constitutional challenges:

[68] The categorization of a particular proceeding as civil or criminal "is first of all a question of statutory construction." We must initially ascertain whether the legislature meant the statute to establish "civil" proceedings. If so, we ordinarily defer to the legislature's stated intent. . . .

[69] Although we recognize that a "civil label is not always dispositive," we will reject the legislature's manifest intent only where a party challenging the statute provides "the clearest proof" that "the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."

[70] Id. at 2082 (citations omitted). Finding that (1) "[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm," id., and that (2) the challenger "has failed to satisfy th[e] heavy burden" of demonstrating that the statutory scheme was so punitive in form and effect as to render it punitive or criminal despite the legislature's apparent non-punitive intent, id., the Court concluded that involuntary confinement pursuant to Kansas's civil commitment statute does not amount to punishment. Id. at 2085.

[71] The Supreme Court has not spelled out the precise nature of the second-stage inquiry, in which the challenger must overcome an initial presumption of nonpunitiveness by demonstrating that the sanction, in form and operation, has an essentially punitive "character." Cf. Nixon v. Administrator of General Services, 433 U.S. 425, 475-76 (1977) (describing similar inquiry in bill of attainder context as "analyzing whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes"). The Court suggested that in determining whether a purportedly civil sanction has been transformed into a criminal or punitive one, the list of considerations in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), *fn13 though "certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of similar questions and provides some guidance in the present case," Ward, 448 U.S. at 249 (citation omitted); see 89 Firearms, 465 U.S. at 365.

[72] An examination of the case law confirms that whether a sanction intended as regulatory or non-punitive is "so punitive in fact" as to violate the ex post facto prohibition is a highly context specific matter. See Nestor, 363 U.S. at 616 ("[E]ach case has turned on its own highly particularized context."). Sometimes one factor will be considered nearly dispositive of punitiveness "in fact," while sometimes another factor will be crucial to a finding of nonpunitiveness. Cf. 89 Firearms, 465 U.S. at 365-66 (discussing only one commonly considered factor -- "whether or not the proscribed behavior is already a crime" --as arguably supporting party challenging law); Ward, 448 U.S. at 249-50 (same). *fn14 Other recent cases have cited some of the factors listed in Mendoza-Martinez to support a characterization of the challenged burden as civil, and either ignored or discounted the presence of other factors generally considered inconsistent with such a characterization. See, e.g., Ursery, 116 S. Ct. at 2148-49 (supporting conclusion that forfeiture is civil by noting that it is traditionally considered as civil, and that scienter is not required, although acknowledging that forfeiture serves purpose of deterrence and is "tied to criminal activity"); Hendricks, 117 S. Ct. at 2082-83 (supporting conclusion that commitment is civil by noting that criminal conviction is not prerequisite for commitment, and that no finding of scienter is required, although acknowledging that statute uses procedural safeguards of criminal proceedings and that civil commitment involves "affirmative restraint" and incapacitation of the offender).

[73] With these principles in mind, we proceed to examine first the notification and then the registration provisions of the SORA.

[74] II. Notification Provisions of the SORA

[75] All persons convicted of sex offenses listed under the Act are subject to its community notification provisions, in one form or another. As described earlier, the DCJS and local law enforcement officials are required under the SORA either to provide the public with access to, or to affirmatively disseminate to the public, the information contained in the sex offender's registration file, including the offender's identity, and, depending on the offender's risk classification, his description, address, crime of conviction, modus operandi, and conditions of release. To determine whether such notification is punishment, we will examine the notification provisions under the two part framework discussed above.

[76] A. Legislative Intent

[77] There is ample evidence that the New York legislature intended the SORA to further non-punitive goals. The Act's preamble contains the following statement of the legislature's findings and intent:

[78] The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies' efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.

. . . .

[79] [T]he legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex offenders to the general public, will further the primary government interest of protecting vulnerable populations and in some instances the public, from potential harm.

[80] N.Y. Correct. Law Section(s) 168 (Historical and Statutory Notes). *fn15

[81] The legislative history of the Act supports the preamble's characterization of the twin purposes served by the SORA -- protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes. As Assemblyman Daniel L. Feldman stated in the bill jacket for the SORA:

[82] Community notification promotes a state interest in advancing the protection of the public . . . . The public is notified so that they can be [the] "eyes and ears" [of law enforcement agencies]. The public can notify the appropriate authorities if the sex offender violates any condition of the offender's parole or probation which would enable the authorities to intervene when a releasee's behavior begins to pose a threat to community safety. This is extremely important given the high recidivism rate many of these offenders have and the lack of scientific evidence . . . that proves treatment programs reduce sex offender recidivism. A notified community may prevent crimes with greater attention and caution.

[83] Bill Jacket for L. 1995, ch. 192, at 3. A memorandum issued by the SORA's sponsor in the State Senate, Senator Dean G. Skelos, and his counterpart in the State Assembly, Assemblyman Feldman, further confirms the regulatory aims of the Act. See Introducer's Memorandum in Support of Sen. Bill S. 11-B, at 2-3 (1996) ("Protecting the public, especially children, from sex offenders is a primary governmental interest . . . . The New York statutory plan provided under this bill is predominantly regulatory. . . . This balanced approach . . . affords concerned citizens with the ability to access information which may ultimately provide significant protection to their family.").

[84] Similarly, the decision to make the SORA retroactive was guided by the legislature's desire to protect the public from potentially dangerous persons. As Assemblyman Feldman observed, without retroactive reach, the Act would "leave[] the majority of sexual offenders cloaked in anonymity," despite the fact that offenders who have already committed their crimes are no less dangerous than those who will commit crimes after the enactment of the Act. Bill Jacket, supra, at 5. The views of a law's sponsors, though not conclusive, are entitled to considerable weight. See, e.g., North Haven Board of Education v. Bell, 456 U.S. 512, 526-27 (1982); see also United States v. Jackson, 805 F.2d 457, 462-63 (2d Cir. 1986).

[85] Review of the transcripts of the Senate and Assembly floor debates largely confirms our conclusion that the state legislature enacted the SORA in order to "provide parents and communities with information as to potential risks from convicted sex offenders." See Ross, 169 Misc. 2d at 311, 646 N.Y.S.2d at 251. Although we agree with the District Court that the comments of some legislators reveal their animosity toward, and even a desire to punish, sex offenders, see Doe v. Pataki II, 940 F. Supp. at 621-22, we decline to rely on these isolated statements to characterize the legislature's intent as punitive. We have observed that floor debates are of "particularly limited assistance in resolving highly controversial issues of [legislative] intent." Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1405 (2d Cir. 1993). Because "any member can make a floor speech, there is scant utility in totaling up the number of speeches on each side of an issue and attempting to divine [legislative] intent from the quantity of [minute] pages generated on either side." Id.; see also Murphy v. Empire of America, FSA, 746 F.2d 931, 935 (2d Cir. 1984) (isolated remarks, particularly when unclear or conflicting, are entitled to little or no weight unless no official legislative history exists).

[86] More specifically, courts have cautioned that in determining whether a sanction was imposed for punitive or non-punitive reasons, "[j]udicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed." Nestor, 363 U.S. at 617; see Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995) ("[R]eliance on statements made by politicians in their efforts to persuade colleagues to enact a law is a wholly unreliable method for determining the nature of a sanction."); Wiley v. Bowen, 824 F.2d 1120, 1122 (D.C. Cir. 1987) ("[W]e cannot lightly attribute to Congress as a whole the impermissible motives of a few of its members."); cf. Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 855 n. 15 (1984) (bill of attainder) (noting that "several isolated statements [by legislators] expressing understandable indignation over the decision of some nonregistrants to show their defiance of the law" were insufficient to establish punitive intent). We therefore decline to "construe the subjective intent expressed by one or more legislators to reflect the objective intent" of the legislature, see Bae, 44 F.3d at 494, and we conclude that the plaintiffs have failed to produce the "unmistakable evidence of punitive intent" required to demonstrate punitive motivation, see Nestor, 363 U.S. at 619.

[87] Moreover, the Act's text and core structural features reasonably bear out its stated non-punitive goals of protecting the public and facilitating future law enforcement efforts. Although the Act is codified in the "Corrections Law" volume of the New York statutes, nothing in its text suggests that the legislature sought to punish sex offenders for their past offenses rather than to prevent any future harms that they might cause, and several of its features manifest a nonpunitive purpose. We examine these features in detail.

[88] 1. Extent of notification.

[89] First and foremost, the extent of notification is carefully calibrated to, and depends solely upon, the offender's perceived risk of re-offense: the greater the likelihood of re-offense, the broader and more detailed the notification to the public. The criteria set out in the Act for determining an offender's risk level fully bear out this prospective, regulatory aim. See N.Y. Correct. Law Section(s) 168-l(5) (basing assessment of risk level on, among other things, "criminal history factors indicative of high risk of repeat offense," "conditions of release that minimize risk [of] re-offense," "physical conditions that minimize risk of re-offense," and "whether psychological or psychiatric profiles indicate a risk of recidivism"). Moreover, although the Act primarily assigns the ultimate responsibility for determining the offender's risk level to the sentencing court, the court must generally abide by the recommendations of the Board, which comprises "experts in the field of the behavior and treatment of sex offenders" from the parole and probation departments. Id. Section(s) 168-l(1), 168-n(2); see Ross, 169 Misc. 2d at 312, 646 N.Y.S.2d at 252. Additionally, the timing of the risk-level determination confirms the forward looking nature of the SORA's notification provisions. The assessment is not made at the time of the original sentencing, but immediately prior to the offender's scheduled release or discharge. See N.Y. Correct. Law Section(s) 168-n(2).

[90] 2. Control of notification.

[91] Second, the extent of notification is carefully controlled. For offenders posing a "low" risk of re-offense, the sole method of public access to registration information is through the special 900 phone number. See id. Section(s) 168-l(6)(a), 168-p. Even for offenders posing a "moderate" risk of re-offense, the scope of notification is limited. Law enforcement officials are permitted to disseminate the offender's registration only to "entit[ies] with vulnerable populations," and may not reveal the offender's exact address. See id. Section(s) 168-l(6)(b). Moreover, even for those "sexually violent predators" deemed to pose a "high" risk of re-offense, active notification to the community is not required. See id. Section(s) 168-l(6)(c). Although the public will be allowed access to the offender's registration information through the subdirectory, provided that they "express a purpose" for doing so, id. Section(s) 168-q, the only affirmative dissemination that can be conducted by the state is to entities with vulnerable populations, and not to neighbors, employers, landlords, or news agencies.

[92] 3. Protection against misuse of information.

[93] Third, the notification provisions contain many safeguards to prevent the misuse of registration information. For instance, callers to the 900 number must provide their name and phone number before they will be given any information, and they are warned that they cannot use the information obtained through this service to engage in illegal discrimination and harassment against a listed offender. Id. Section(s) 168-p(2). Procedural safeguards also protect against the misuse of information obtained through the subdirectory. See id. Section(s) 168-q(2) (imposing fines on unauthorized use of subdirectory information and authorizing attorney general, district attorney, or "any person aggrieved" to bring injunctive action to prevent misuse of subdirectory). Additionally, the Act provides that "[t]he unauthorized release of any information required by this article shall be a class B misdemeanor," id. Section(s) 168-u, and that offenders subject to its registration requirements may petition to be relieved from these burdens, see id. Section(s) 168-o.

[94] In sum, the SORA's text and structure convincingly support the legislature's stated regulatory and prospective intent. We therefore proceed to examine whether the plaintiffs have demonstrated by "the clearest proof" that the burdens accompanying public notification are nonetheless "so punitive in form and effect" as to negate the legislature's non-punitive intent. See Ursery, 116 S. Ct. at 2148.

[95] B. Is Notification Punishment "in Fact"?

[96] The plaintiffs point to several features of the notification requirement that they contend reveal that, despite its avowed purpose, it is punitive in fact. They cite its damaging effects on the lives of offenders, its close ties to criminal activity, its excessiveness, its advancement of traditional criminal law goals, and its similarity to historical punitive measures. We discuss each in turn.

[97] 1. Effects of notification.

[98] The plaintiffs rely primarily on what they regard as the Act's penal effects. The District Court agreed with the plaintiffs and concluded that "[p]erhaps more clearly than anything else, the effects of community notification show that these provisions are punitive." Doe v. Pataki II, 940 F. Supp. at 626. The parties have stipulated to a number of anecdotes concerning the effects that notification has had upon registered offenders in New York and in three other states with similar notification laws -- New Jersey, Washington, and California. See Stipulation Concerning Classification of Offenders Para(s) 46-86 (Aug. 30, 1996). The stipulation describes numerous instances in which sex offenders have suffered harm in the aftermath of notification -- ranging from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson. Relying in part on these episodes, the District Court, quoting Roe, 938 F. Supp. at 1091, concluded that "the consequences of [community notification] are unlimited" and that the stigma created by the Act "pervades into every aspect of an offender's life." Doe v. Pataki II, 940 F. Supp. at 627 (quotations omitted). Although we do not doubt that the Act has had unfortunate consequences for many subject to its operation, we do not agree that these detrimental consequences suffice to transform the regulatory measure of community notification into punishment.

[99] First, the Supreme Court has noted that "whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the `sting of punishment.'" Kurth Ranch, 511 U.S. at 777 n.14 (quoting Halper, 490 U.S. at 447 n.7). Generally, a statutory scheme that serves a regulatory purpose "is not punishment even though it may bear harshly on one affected." Nestor, 363 U.S. at 614. Numerous statutes imposing exceedingly harsh disabilities have been upheld against ex post facto challenges. See Hendricks, 117 S. Ct. at 2086 (commitment of sex offenders with "mental abnormality"); Nestor, 363 U.S. at 612-21 (termination of vested old age social security benefits of eligible persons deported for participating in communist activities); DeVeau, 363 U.S. at 160 (prohibition of felons from working for waterfront unions); Galvan v. Press, 347 U.S. 522, 531 (1954) (deportation for prior membership in the Communist Party); Hawker, 170 U.S. at 196 (prohibition of physicians, convicted of felony, from practicing medicine).

[100] Courts of Appeals have similarly rejected ex post facto challenges to legislation imposing harsh consequences. See, e.g., Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995) (requirement that previously convicted murderers and felony sex offenders submit blood for DNA data bank); Bae, 44 F.3d 489 (7th Cir. 1995) (prohibition of felons from participating in FDA drug approval process); Manocchio v. Kusserow, 961 F.2d 1539 (11th Cir. 1992) (prohibition of physicians, convicted of filing false Medicare claims, from participation in program for minimum of five years); Wiley, 824 F.2d 1120 (D.C. Cir. 1987) (termination of old age social security benefits for incarcerated felons); Postma v. International Brotherhood of Teamsters, 337 F.2d 609, 611 (2d Cir. 1964) (prohibition of convicted extortionists from holding union office). Thus, consequences as drastic as deportation, deprivation of one's livelihood, and termination of financial support have not been considered sufficient to transform an avowedly regulatory measure into a punitive one.

[101] Second, although some "effects," for instance, prolonged incarceration in a correctional facility, may in and of themselves be sufficient to render a sanction punitive for purposes of the ex post facto inquiry regardless of the legislature's intent, *fn16 the effects fairly attributable to community notification do not fall into this extremely narrow category. We focus on the attributable effects because we disagree with the assumption, apparently made by the plaintiffs, that all of the unfortunate incidents that have occurred in the aftermath of notification must be considered effects of the SORA for purposes of overcoming the Act's regulatory purpose. Though the Act is doubtless the "but for" cause of some of these incidents -- those perpetrated by persons who gained knowledge of the offender's past crime and current location only because of notification, these incidents are not consequences imposed by the Act. The incidents (1) are wholly dependent on acts by private third parties, (2) result from information most of which was publicly available prior to the SORA, and (3) flow essentially from the fact of the underlying conviction.

[102] Several factors bear on whether hostile private conduct, facilitated by the enhanced dissemination of information about an offender's prior conviction, are the sort of "effects" that render a regulatory statute penal. First, although it is foreseeable, indeed intended, that persons notified of the presence of a convicted sex offender in their midst will take some action to protect themselves and their families, such as warning their children not to socialize with the offender, illegal actions by members of the public, such as physical attacks against the offender, are not consequences that the operation of the SORA contemplates or condones. The Act explicitly provides that anyone misusing information obtained through its notification provisions will be criminally prosecuted and subject to fines beyond those already available in the criminal code. See, e.g., N.Y. Correct. Law Section(s) 168-p(3), 168-q(2), 168-u.

[103] Second, although the SORA makes information regarding an offender's identity, whereabouts, and background easier for the public to obtain, much of this information was publicly accessible before the enactment of the SORA. See, e.g., Werfel v. Fitzgerald, 23 A.D.2d 306, 310, 260 N.Y.S.2d 791, 796-97 (2d Dep't 1965) (noting general New York state policy of allowing unrestricted access to public records, including criminal records); N.Y. Correct. Law Section(s) 149 & 149-a (requiring Corrections Department to notify local police and victim of the release of certain convicted felons); Division of Parole, Guidelines for the Supervision of Sex Offenders 3-4 (Nov. 1994) (authorizing release of conviction and other background information on paroled sex offenders to schools, neighbors, and others at risk). Though the "vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations . . . and a computerized summary located in a single clearinghouse of information," United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 764 (1989) ("Reporters Committee"), is relevant to some legal issues, such as the scope of the privacy interest assessed in construing the privacy exemption of the Freedom of Information Act, 5 U.S.C. Section(s) 552(b)(7)(C) (1994), see Reporters Committee, 489 U.S. at 762-71, that difference does not add a punitive consequence to an otherwise regulatory measure.

[104] Finally, we note that although notification conveys to the public the information that prompts some people to take unlawful action against the convicted sex offender, it is the offender's prior conviction -- or, more precisely, the offender's criminal act itself --that motivates such hostile action. As the Ninth Circuit noted in another context,

[105] [T]he societal consequences that flow from a criminal conviction are virtually unlimited. Individuals may lose their jobs or be foreclosed from serving in future professions; their marriages are destroyed; they may be plunged into poverty. Some individuals may be deported, . . . [and others] may lose their homes . . . . Virtually all individuals who are convicted of serious crimes suffer humiliation and shame, and many may be ostracized by their communities.

[106] United States v. Koon, 34 F.3d 1416, 1454 (9th Cir. 1994), aff'd in part, rev'd in part on other grounds, 116 S. Ct. 2035 (1996).

[107] Whatever incremental burdens upon convicted sex offenders arise from public notification are not "so disproportionately severe and so inappropriate to non-punitive ends" as to constitute punishment. See Nixon, 433 U.S. at 473 (classifying burden for bill of attainder purposes).

[108] 2. Relation of notification to criminal activity.

[109] The plaintiffs also point to the somewhat close relation between the notification provisions and criminal activity as indicative of the Act's punitive nature. As the District Court stated, in agreement with the plaintiffs, these provisions are "triggered by behavior that is already a crime," "provide[] for the sentencing judge to determine the level of notification," and "provide[] for consideration of victim impact statements in determining" the offender's risk level. Doe v. Pataki II, 940 F. Supp. at 623 (quotations omitted). We do not believe that these aspects of the SORA suffice to transform it into punishment.

[110] First, the fact that the Act's requirements are triggered by a criminal conviction is common to all regulatory disabilities that result from a prior conviction, for instance, the loss of the right to vote. *fn17 The disabilities mandated by the laws challenged and upheld in several Supreme Court decisions have also been triggered solely by the existence of a prior conviction. See, e.g., Hawker, 170 U.S. at 196-97 (prior felony conviction conclusive evidence of lack of fitness to practice medicine). As with the laws upheld in Hawker, Galvan, DeVeau, and Flemming, the offender's prior conviction is used by the SORA "solely for evidentiary purposes," i.e., as a presumption that the offender is likely to re-offend in the future. See Hendricks, 117 S. Ct. at 2082.

[111] Second, as we have discussed, although the sentencing judge is assigned the ultimate authority to determine an offender's risk level, two features of this process indicate its prospective and nonpunitive nature. First, the risk-level determination is not made at the time of the original sentencing, but just prior to the offender's scheduled release. Second, the court acts only upon the recommendations of the Board, a panel of experts on sex offenders relying upon a guideline that focuses exclusively on whether the offender is likely to re-offend. *fn18

[112] Third, the fact that the Act requires the sentencing court and the Board to consider the victim-impact statement in assessing the risk level does not indicate a desire to punish the offender. There is every reason to believe that such statements are relevant to a determination of the amount of harm likely to result from the offender's actions if he should re-offend. Under the SORA, the offender's "risk" level is a composite of both his likelihood to re-offend and the degree of harm likely to result from the re-offense. See N.Y. Correct. Law Section(s) 168-l(5). The victim's account of the effect of the offender's act is relevant to such an inquiry.

[113] As the Supreme Court stated in Hendricks, the fact that a challenged statute uses "`procedural safeguards usually found in criminal trials' . . . does not transform a civil commitment proceeding into a criminal prosecution." 117 S. Ct. at 2083 (quoting Allen v. Illinois, 478 U.S. 364, 371 (1986)). Similarly, the fact that the SORA is triggered by the existence of a prior conviction for a sex offense and involves the sentencing judge and the victim's perspective in its procedures does not render the Act punitive, especially since these features, on a closer look, facilitate non-punitive goals. See Ursery, 116 S. Ct. at 2149 (that a law is "tied to criminal activity . . . is insufficient to render [it] punitive").

[114] 3. Excessiveness of notification.

[115] The plaintiffs also contend that the broad coverage of the SORA and the wide extent of the notification that it authorizes indicate its punitive character. They point out that the Act's notification provisions (1) cover 36 offenses, including seven misdemeanors and several crimes not involving sexual contact, (2) encompass first time offenders, (3) allow public notification even for low risk offenders, and (4) permit entities with vulnerable populations to disseminate information to the public with unfettered discretion. We believe, however, that the SORA's notification provisions are reasonably related to the nonpunitive, prospective goals of protecting the public and facilitating law enforcement efforts, and that the Act's occasionally imprecise targeting does not suffice to render it punitive.

[116] First, although the Act technically covers a large number of offenses, *fn19 including some, like statutory rape, that appear to present a far less compelling need for community notification than offenses like child molestation, the Act also contains a number of moderating provisions capable of greatly limiting the extent of notification or even of relieving the offender from notification altogether. For instance, the process for assigning risk levels weighs numerous factors designed to determine the offender's likelihood of reoffense and the potential harm resulting from such a relapse, including the relative seriousness of the crime of conviction, the relationship between the offender and the victim, and the offender's psychological profile. See N.Y. Correct. Law Section(s) 168-l(5). For example, an offender whose crime did not involve sexual contact with a stranger will likely be deemed to have a "low" risk of re-offense and assigned a level-one designation. Under the Act, only the most limited form of notification -- restricted public access via the fee-based 900 number -- is permitted for such offenders. See id. Section(s) 168-l(6)(a), 168-p. Moreover, the Act allows any offender within its coverage to petition the court for relief from its registration requirements. See id. Section(s) 168-o. If the court determines, after reviewing an updated report from the Board, that notification is no longer appropriate because the offender does not present a danger to the community, the offender will be free from the Act's operation.

[117] Second, although the Act technically subjects even low risk offenders to public notification, the extent of such notification is extremely limited. For level-one offenders, only public access, not affirmative dissemination of information to the community, is available under the Act. Id. Section(s) 168-l(6)(a). Moreover, a member of the public may obtain information through the 900 number system only after providing specific information identifying an individual suspected of being on the DCJS's central registry. Id. Section(s) 168-p. Additionally, many safeguards exist to prevent the misuse of this service, id. Section(s) 168-p(2)-(3), and the only information that can be obtained on a level-one offender is that he is in the registry and that he presents a low risk of re-offense.

[118] Third, although the Act applies to first time offenders, the limitations on notification are also relevant to such coverage. Notification is limited for persons unlikely to re-offend. Among the numerous factors relevant to the determination of an offender's notification level, for instance, are "criminal history factors indicative of high risk of repeat offense," id. Section(s) 168-l(5)(a), including "the number, date and nature of prior offenses," id. Section(s) 168-l(5)(b)(iii). Similarly, a first time offender who can demonstrate that he does not present a danger to the community may petition the court to be relieved from the Act's requirements. Id. Section(s) 168-o. Moreover, the legislature's refusal to exclude first time offenders from the SORA is supported by the possibility that, in many cases, a sex offender's first encounter with the criminal justice system might have occurred after numerous unreported offenses.

[119] Finally, the fact that the Act permits entities with vulnerable populations to disseminate, at their discretion, information they receive from local law enforcement authorities does not weigh heavily toward rendering it punitive. The legislature's decision to permit a day-care center, for example, to determine whether additional notice to parents of children who attend the center would be appropriate is justified on the grounds that such "secondary" notification may be necessary in some instances to promote public safety and facilitate the prosecution of sex crimes, and that such entities know better than either the legislature or the police when additional notification is needed.

[120] Although the SORA might be somewhat imprecise and occasionally overbroad in its coverage, the legislature acted well within its authority in determining the kind of offenses triggering notification, the category of persons subject to the Act's requirements, and the extent of notification appropriate to promote its non-punitive goals. The legislature is not required to act with perfect precision, and its decision to cast a net wider than what might be absolutely necessary does not transform an otherwise regulatory measure into a punitive sanction.

[121] 4. Notification and the goals of the criminal law.

[122] Plaintiffs point out that the Act serves to deter future misconduct, constitutes retribution against sex offenders, and interferes with offenders' ability to rehabilitate. They contend that these criminal law-related features of the SORA render it punitive. We disagree.

[123] First, the fact that notification serves to deter sex offenders, both specifically and generally, from committing crimes in the future is not indicative of punitiveness. As the Supreme Court said in Ursery, deterrence "may serve civil as well as criminal goals." 116 S. Ct. at 2149; see also 89 Firearms, 465 U.S. at 364. The civil forfeiture determined to be non-punitive in Ursery, for instance, both specifically deters the person whose property is forfeited because it was used to facilitate marijuana offenses, and generally deters others who might wish to engage in similar activities. Second, though some members of the public might applaud the notification provisions for, in Judge Chin's words, "giving the sex offenders what . . . they deserve," Doe v. Pataki II, 940 F. Supp. at 629, such retributive views may not be ascribed, without evidence, to the legislature that enacted the SORA. As in Hendricks, notification pursuant to the Act "is not retributive because it does not affix culpability for prior conduct"; rather, the Act relies on such conduct "solely for [the] evidentiary purpose[]" of determining whether the offender is likely to present a danger to the community once he is released. 117 S. Ct. at 2082. Finally, the plaintiffs' and the District Court's conclusion that notification interferes with an offender's ability to rehabilitate is speculative: for some there might be interference but for others it is likely that rehabilitation will be furthered by the knowledge that neighbors and the local police are aware of the offender's compulsions, thereby reducing the chances of committing further crimes without detection.

[124] Even if the SORA advances some goals traditionally associated with the criminal law, it primarily "serve[s] important nonpunitive goals" of protecting the public from potential dangers and facilitating future law enforcement efforts. See Ursery, 116 S. Ct. at 2148.

[125] 5. Historical analogues.

[126] Finally, plaintiffs contend that notification is the modern day incarnation of traditional "stigmatization" penalties such as stocks, pillories, and branding. They also contend that because notification occasionally results in the offender's being driven from his residence, it is akin to the sanction of banishment. The similarity of a challenged sanction to measures that have historically been considered punitive is sometimes an important consideration in the ex post facto analysis, but we do not believe that public notification is analogous to either shaming penalties or banishment.

[127] Stigmatization penalties of an earlier era primarily served distinctively punitive goals and operated through significantly different mechanisms than community notification pursuant to the SORA. First, such penalties were traditionally employed in small, homogeneous, and tightly knit social environments in which the "invisible whip of public opinion" upon the psyche of the offender, Lawrence M. Friedman, Notes Toward a History of American Justice, reprinted in American Law and the Constitutional Order 14 (enlarged ed. 1988), was often considered sufficient to serve the traditional goals of the criminal law -- deterrence, retribution, and rehabilitation. For many offenses, especially "victimless" moral or religious crimes, no other sanction apart from public humiliation was imposed by colonial communities. See, e.g., Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1226 (1982). The stigmatization penalties of that era were intended to visit the community's wrath upon the transgressor and to shame him into rejoining the flock. See H. Barnes, The Story of Punishment 39 (1930).

[128] By contrast, public notification pursuant to the SORA is not imposed either in lieu of incarceration or fines -- our society's preferred modes of punishment -- or as another component of the offender's criminal sentence. Rather, the "burden" of notification is imposed only after the designated punishment has been served, and is intended to serve the goals of protecting the public and facilitating future law enforcement efforts. Second, traditional shaming penalties such as branding or the stocks enlisted the offender's physical participation in his own degradation. Notification pursuant to the SORA, however, requires no participation by the offender. Notification itself imposes no physical pain, mark, or restraint on the offender.

[129] Notification is even less like the traditional penalty of banishment, the purpose of which is to remove someone considered to present a "permanent danger" to the community. Lawrence M. Friedman, Crime and Punishment in American History 40 (1993). With banishment, the state acts to remove the offender. By contrast, if a sex offender is evicted by his landlord or pressured to move from his residence by his neighbors after his criminal history becomes known, those private actions, however unfortunate, are not intended consequences of the SORA, and the historical analogy fails.

[130] C. Aggregate Assessment

[131] Our analysis, of necessity, has given separate consideration to each of the factors relied on by the plaintiffs to establish the penal nature of the notification provisions, but we acknowledge that their aggregate effect must ultimately be assessed. We also recognize that whenever statutes impose burdens on those convicted of crime, those burdens will appear to be punishment from the perspective of the offender, even though the proponents of the legislation will normally be able to articulate a valid regulatory purpose. It will usually be an easy task for a court to determine whether the legislature intends a regulatory purpose but often a more difficult task to determine whether an avowedly regulatory purpose has been achieved by the imposition of burdens fairly classified as punishment for purposes of the Ex Post Facto Clause.

[132] The notification provisions of the SORA present the problem in a troublesome context, framed by the strong public interest in alerting relevant segments of the community to the presence of released sex offenders and by the understandable interest of the released offender in beginning life after confinement with minimal disabilities. We would be less than candid if we did not acknowledge that the effects of notification provisions, like those of New York and other states, will be more severe for some offenders than for others. The released sex offender living in a small community might well become a pariah, pressured to move away, unless the magnanimous spirit of neighborliness prevalent in much of small town America overcomes initial community fears. Other offenders, returning or moving to large cities, are more likely to take refuge in the anonymity of urban life.

[133] We fully understand how Judge Chin reached his conclusion that the notification provisions are punitive, and we have given his opinion careful consideration. Nevertheless, assessing all aspects and consequences of the notification provisions, and applying the constitutional standards as we believe the Supreme Court has enunciated them to the aggregate of these consequences, we conclude that the plaintiffs have not provided "the clearest proof" that the burdens attendant to these provisions are "so punitive in form and effect," Ursery, 116 S. Ct. at 2148, as to transform them into punitive sanctions. Because we have previously concluded that the legislature's intent in enacting these provisions was non-punitive and that the text and structure of the Act bear out its prospective, regulatory goals, we hold that the notification requirements of the SORA do not constitute punishment for purposes of the Ex Post Facto Clause.

[134] III. Registration Provisions of the SORA

[135] We agree with the District Court that the registration requirements of the SORA do not impose punishment upon the plaintiffs. Although the plaintiffs contended in the District Court that all of these requirements violated the ex post facto prohibition, they limit their challenge on this appeal to those registration provisions applicable only to certain high risk offenders. Under the Act, offenders classified as "sexually violent predators" must register (1) personally, (2) every 90 days, and (3) for a minimum of ten years and potentially for life. See N.Y. Correct. Law Section(s) 168-f(3), 168-h. Following the same two part inquiry applied to the notification provisions, we conclude that these registration requirements are not punitive.

[136] First, the legislature enacted the registration provisions primarily to serve the non-punitive purpose of enhancing future law enforcement efforts. As the Act's preamble states:

[137] The system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community.

[138] Id. Section(s) 168 (Historical and Statutory Notes). Moreover, because registration is the necessary prerequisite for community notification, registration also serves the general goal of protecting members of the public from the potential dangers posed by convicted sex offenders. The text and structure of the registration provisions of the Act further bear out the stated non-punitive goals. For instance, the duration, form, and frequency of registration are determined solely by whether the offender qualifies as a sexually violent predator, see id. Section(s) 168-f(3), 168-h, the offender can petition the court to be relieved from the duty to register, see id. Section(s) 168-o, and the Act prohibits the unauthorized release or use of registration information, see id. Section(s) 168-u.

[139] Second, the burdens of registration are not "so punitive in form or effect" as to transform this regulatory measure into a punitive one. For instance, registration itself, which can usually be accomplished without public notice, (1) does not ordinarily result even in societal opprobrium or harassment, (2) does not serve the goals of criminal punishments, and (3) does not resemble any measures traditionally considered punitive. Moreover, although the Act deems the failure to register a crime, see id. Section(s) 168-t, this provision is fully prospective. Additionally, we note that an offender required to register can petition the court to be relieved of that duty. See id. Section(s) 168-o.

[140] Although we recognize that the duty to register in person every 90 days for a minimum of ten years is onerous, *fn20 we do not believe that this burden is sufficiently severe to transform an otherwise nonpunitive measure into a punitive one. As discussed previously, the Supreme Court has consistently upheld far heavier burdens against ex post facto challenges, including deportation, termination of financial support, and loss of livelihood. Moreover, the legislature's decision to subject persons with a greater risk of re-offense to more onerous registration requirements is reasonable. Because the plaintiffs have not demonstrated by the clearest proof that the registration provisions of the SORA are punitive in form and effect, we hold that these provisions of the Act do not constitute punishment for purposes of the Ex Post Facto Clause

[141] Conclusion

[142] We conclude that application of the registration and notification provisions of the SORA to persons who committed their offenses prior to the January 21, 1996, effective date of the Act does not violate the Ex Post Facto Clause. We do not resolve the plaintiffs' remaining statutory and constitutional arguments, as the District Court did not reach them in its decision and as the parties did not present them on this appeal. We therefore affirm the portion of the District Court's judgment dismissing plaintiffs' claim that retroactive application of the Act's registration provisions violates the Ex Post Facto Clause, reverse the portion permanently enjoining the retroactive application of the Act's public notification provisions, and remand for further proceedings on plaintiffs' remaining claims.

***** BEGIN FOOTNOTE(S) HERE *****

[143] *fn1 Megan Kanka was the seven-year-old victim of a sexual assault and murder in New Jersey in 1994, which sparked enactment of sex offender registration and notification statutes in that state and several others.

[144] *fn2 No class has been certified because the defendants have agreed to be bound by the decision in this case with respect to other members of the proposed class. See Doe v. Pataki, 919 F. Supp. 691, 693 n.2 (S.D.N.Y. 1996) ("Doe v. Pataki I").

[145] *fn3 Doe was convicted of first degree attempted rape in 1990 and has been released on parole since 1994; Roe was convicted of first degree sexual abuse in 1995 and sentenced to probation; and Poe was convicted of first degree attempted sodomy in 1989 and is currently entitled to immediate conditional release from a state correctional facility.

[146] *fn4 Sex offenders who were on parole or probation on the effective date of the Act are also required to register. Id. Section(s) 168-g.

[147] *fn5 Sexually violent predators include (1) persons convicted of a "sexually violent offense," as that term is defined under section 168-a(3), see id. Section(s) 168-a(7); (2) sex offenders "who suffer[] from a mental abnormality that makes [them] likely to engage in predatory sexual conduct," id.; and (3) sex offenders designated as presenting a "high" risk of reoffense (level three), id. Section(s) 168-l(6)(c).

[148] For most persons subject to the registration requirements, the sentencing court, after receiving the recommendation of the Board of Examiners of Sex Offenders, is responsible for determining whether an offender qualifies as a sexually violent predator. See id. Section(s) 168-d(3), 168-l(6). For persons on parole or probation on the effective date of the Act, the parole or probation departments will make this determination. See id. Section(s) 168-g(1).

[149] *fn6 The fourteen factors are (1) use of violence, (2) sexual contact with victim, (3) number of victims, (4) duration of offense conduct with victim, (5) age of victim, (6) other victim characteristics, (7) relationship between offender and victim, (8) age at first sex crime, (9) number and nature of prior crimes, (10) recency of prior felony or sex crime, (11) drug or alcohol abuse, (12) acceptance of responsibility, (13) conduct while confined or under supervision, and (14) release environment. See Guidelines at 7-16.

[150] *fn7 An offender's "risk level" encompasses both an assessment of his likelihood of re-offense and an assessment of the potential harm that would result from such a subsequent offense. See Guidelines at 2.

[151] *fn8 For sex offenders who were on parole or probation on the effective date of the Act, the Division of Parole and the Department of Probation, with the advice or recommendation of the Board, are assigned the duty of determining their risk levels. See Stipulation Concerning Classification of Offenders Para(s) 33 (Aug. 30, 1996); see also N.Y. Correct. Law Section(s) 168-g(1).

[152] *fn9 If an exact birth date or address is not available, the caller may identify the offender with "any combination" of the characteristics listed in the statute, but if three of those characteristics include ethnicity, hair color, and eye color, "other identifying characteristics shall be provided." N.Y. Correct. Law Section(s) 168-p(1).

[153] *fn10 See, e.g., Artway v. Attorney General of New Jersey, 81 F.3d 1235 (3d Cir. 1996); Roe v. Office of Adult Probation, 938 F. Supp. 1080 (D. Conn. 1996); W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996); Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), appeal dismissed sub nom. Doe I v. Burton, 85 F.3d 635 (9th Cir. 1996) (table); State v. Myers, 923 P.2d 1024 (Kan. 1996); Opinion of the Justices to the Senate, 668 N.E.2d 738 (Mass. 1996); Doe v. Poritz, 662 A.2d 367 (N.J. 1995); State v. Ward, 869 P.2d 1062 (Wash. 1994); State v. Noble, 829 P.2d 1217 (Ariz. 1992); People v. Afrika, 168 Misc. 2d 618, 648 N.Y.S.2d 235 (Sup. Ct. Monroe County 1996); State v. Babin, 637 So. 2d 814 (La. Ct. App. 1994). Several other decisions discussing whether sex offender registration or notification laws impose additional punishment within the meaning of the Ex Post Facto Clause have been issued since the District Court's decision in this case. See, e.g., Doe v. Kelley, 961 F. Supp. 1105 (W.D. Mich. 1997); Doe v. Gregoire, 960 F. Supp. 1478 (W.D. Wash. 1997); Doe v. Weld, 954 F. Supp. 425 (D. Mass. 1996); State v. Pickens, 558 N.W.2d 396 (Iowa 1997).

[154] *fn11 See, e.g., United States v. Ursery, 116 S. Ct. 2135 (1996); Montana v. Kurth Ranch, 511 U.S. 767 (1994); Austin v. United States, 509 U.S. 602 (1993); United States v. Halper, 490 U.S. 435 (1989); United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Ward, 448 U.S. 242 (1980); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Flemming v. Nestor, 363 U.S. 603 (1960); DeVeau v. Braisted, 363 U.S. 144 (1960); Trop v. Dulles, 356 U.S. 86 (1958). Two Supreme Court decisions issued since the District Court's opinion have considered similar questions. See Kansas v. Hendricks, 117 S. Ct. 2072 (1997); Lynce v. Mathis, 117 S. Ct. 891 (1997).

[155] *fn12 A similar prohibition applies to the federal government. See U.S. Const. Art. I, Section(s) 9, cl. 3 ("No . . . ex post facto Law shall be passed.").

[156] *fn13 Mendoza-Martinez listed the following factors:

[157] Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . .

[158] 372 U.S. at 168-69 (footnotes omitted). The Court did not conduct a detailed examination of these factors or apply them in Mendoza-Martinez because the "objective manifestations of congressional purpose [in the challenged law] indicate conclusively that the provisions in question can only be interpreted as punitive." Id. at 169.

[159] *fn14 A recent example where one factor, not normally assessed, was deemed persuasive in favor of classification is Justice Breyer's dissenting opinion in Hendricks. In assessing the Kansas commitment statute, he focused primarily on whether the state intended to treat those who were "civilly" but involuntarily committed, and concluded that lack of treatment rendered the statute punitive. See Hendricks, 117 S. Ct. at 2098. Cf. Allen v. Illinois, 478 U.S. 364, 373-74 (1986) (commitment statute classified as civil in absence of record indicating lack of treatment).

[160] *fn15 The legislature also noted that adoption of the SORA will bring New York into compliance with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. Section(s) 14071, which provides funding incentives for states to adopt laws requiring convicted sex offenders and offenders against children to register with law enforcement agencies upon their release. A 1996 amendment to this law requires participating states to disclose relevant information concerning registrants when "necessary to protect the public concerning a specific person required to register." Id. Section(s) 14071(d)(2). The federal law does not require states to apply their registration or notification statutes retroactively.

[161] *fn16 This is the implicit lesson of cases such as Lynce, 117 S. Ct. 891 (1997), Weaver v. Graham, 450 U.S. 24 (1981), and Lindsey v. Washington, 301 U.S. 397 (1937).

[162] *fn17 We similarly reject the argument, based on one of the Mendoza-Martinez factors, that notification pursuant to the Act is linked to a finding of scienter. See Doe v. Pataki II, 940 F. Supp. at 623. The notification procedures are triggered by a finding of propensity to offend in the future -- not upon a finding of criminal mens rea.

[163] *fn18 We express no opinion on the state law issue of the degree of deference a court should give to the views of the Board.

[164] *fn19 Among the covered offenses are (i) attempts, see N.Y. Correct. Law Section(s) 168-a(2)-(3), and (ii) offenses required for inclusion pursuant to the federal Jacob Wetterling Act, see 42 U.S.C. Section(s) 14071(3)(A)-(B).

[165] *fn20 The special requirement of in-person, quarterly registration for a minimum period of ten years -- applicable to offenders classified as sexually violent predators -- can be removed if the court determines that the offender "no longer suffers from a mental abnormality that would make him likely to engage in a predatory sexually violent offense." Id. Section(s) 168-h.

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]


19970822

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Roe v. Office of Adult Probation, 125 F.3d 47 (2d Cir. 09/08/1997)



[Editor's note: footnotes (if any) trail the opinion]

[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[2] No. 1579

[3] August Term 1996

[4] Argued: March 25, 1997

[5] Decided: September 8, 1997

[6] Docket No. 96-9157

[7] ROBERT ROE, Plaintiff-Appellee,

v.

[8] OFFICE OF ADULT PROBATION; ROBERT BOSCOE, Director of Office of Adult Probation; RONALD CORMIER, Probation Officer; MICHAEL SANTESE; and DONALD POPILLO, Defendants-Appellants.

[9] Before: NEWMAN, MINER and GODBOLD, *fn* Circuit Judges.

[10] Appeal by State defendants from the August 27, 1996, order of the United States District Court for the District of Connecticut (Dominic J. Squatrito, Judge) preliminarily enjoining the defendants from applying the Office of Adult Probation's sex offender notification policy retroactively to the plaintiff. Plaintiff contends the retroactive application violates the Ex Post Facto Clause.

[11] Reversed and remanded for further proceedings.

[12] Richard Blumenthal, Atty. Gen., Hartford, Conn. (Stephen J. O'Neill, Margaret Q. Chapple, Gregory T. D'Auria, Asst. Attys. Gen., Hartford, Conn., on the brief), for defendants-appellants.

[13] Eliot B. Gersten, Hartford, Conn. (Aviva Cuyler, Gersten & Clifford, Hartford, Conn., on the brief), for plaintiff-appellee.

[14] (Frank W. Hunger, Asst. Atty. Gen., Washington, D.C.; Christopher F. Droney, U.S. Atty., New Haven, Conn.; Leonard Schaitman, Wendy M. Keats, Dept. of Justice, Washington, D.C., submitted a brief for amicus curiae United States of America).

[15] JON O. NEWMAN, Circuit Judge:

[16] In Doe v. Pataki, __ F.3d __ (2d Cir. 1997), we upheld, as against a challenge under the Ex Post Facto Clause, the constitutionality of the registration and notification provisions of New York's version of "Megan's Law," which requires varying degrees of community notification about released sex offenders. *fn1 On this appeal we consider a similar challenge to a recently adopted notification policy of Connecticut's Office of Adult Probation ("OAP"). The specific issue is whether the OAP policy imposes "punishment" for purposes of the Ex Post Facto Clause, in which event it could not be applied to probationers who committed crimes before adoption of the policy. This issue arises on an appeal by the OAP and several of its officials from the August 27, 1996, order of the District Court for the District of Connecticut (Dominic J. Squatrito, Judge), preliminarily enjoining the defendants from applying the OAP's Sex Offender Notification Policy ("the Policy") to plaintiff Robert Roe, who was convicted of several sex crimes in 1991. See Roe v. Office of Adult Probation, 938 F. Supp. 1080 (D. Conn. 1996). In light of our recent decision in Doe v. Pataki, supra, we rule that notification pursuant to the Policy does not constitute punishment for purposes of ex post facto analysis. We therefore reverse the District Court's order and remand for further proceedings on Roe's remaining claims.

[17] Background

[18] Unlike most recent cases involving ex post facto challenges to community notification laws, the target of attack in this case is not a state statute, but an internal policy of a state agency. Nonetheless, because the OAP Policy is somewhat intertwined with, and perhaps partially authorized by, several recently enacted Connecticut statutes, we begin by examining the relevant legislation.

[19] 1. Connecticut's Registration and Notification Scheme

[20] In response to similar concerns regarding the harm to society caused by sex crimes and the relatively high rate of recidivism among sex offenders, which have prompted the enactment of sex offender registration and notification statutes around the country, Connecticut has recently enacted its own version of "Megan's Law." The first step occurred in 1994, when the state legislature enacted a registration scheme for convicted sex offenders. See Act of June 9, 1994 ("1994 Act"), P.A. No. 94-246, 1994 Conn. Legis. Serv. 974 (West 1994). The 1994 Act applied only to individuals convicted after January 1, 1995, of "sexual assault," which includes the following seven offenses: aggravated sexual assault in the first degree, sexual assault in the first degree, sexual assault in the second degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, sexual assault in a spousal or cohabitating relationship, and injury or risk of injury to a minor. See Conn. Gen. Stat. Ann. Section(s) 54-102r(a)(1)(A), (b), (c). *fn2 The law required these offenders to provide certain registration information to law enforcement officials, including name, address, *fn3 social security number, information about the crime of conviction, and a "complete description of the person including photograph and fingerprints." Id. Section(s) 54-102r(e). The 1994 Act, in addition to requiring registration, provided for minimal notification of information. Registration information could be disclosed only to "the custodian of such records or a sworn law enforcement officer, in the performance of his duties." P.A. No. 94-246, Section(s) 12(c).

[21] In 1995, the Connecticut legislature amended section 54-102r to broaden notification significantly. See Act of May 30, 1995 ("1995 Act"), P.A. No. 95-142, 1995 Conn. Legis. Serv. 312 (West 1995). Section 10(g) of the 1995 Act appeared to permit (by exempting from a disclosure prohibition) the disclosure of registration information "to any specific person if such disclosure is deemed necessary by the chief of police of the police department or resident state trooper of the municipality to protect said person from any person subject to" registration. Id. Section(s) 10(g) (codified at Conn. Gen. Stat. Ann. Section(s) 54-102r(g)); see also id. (providing that any person disclosing registration information in violation of this section "shall be guilty of a class C misdemeanor"). Like the registration statute enacted in 1994, the 1995 Act, which became effective on October 1, 1995, applied only to persons convicted of "sexual assault" (as that term is defined in subsection 54-102r(a)(1) of the Connecticut General Statutes) on or after January 1, 1995. See id. Section(s) 10(a)-(c) (codified at Conn. Gen. Stat. Ann. Section(s) 54-102r(a)-(c)). *fn4 Thus, the 1995 Act had a limited retroactive effect -- it applied to persons who committed sex crimes at any time prior to October 1, 1995 (the effective date of the 1995 Act), if they were convicted after January 1, 1995.

[22] In 1997, after the District Court's decision in this case, the Connecticut legislature amended section 54-102r in two respects. See Act of June 26, 1997 ("the 1997 Act"), P.A. No. 97-183, 1997 Conn. Legis. Serv. 377 (West 1997). First, the 1997 Act deleted the January 1, 1995, date, which had limited the coverage of the registration requirements of section 54-102r(b), (c), thereby requiring registration regardless of the date of conviction. Second, the 1997 Act deleted the disclosure prohibition of section 54-102r(g), thereby arguably authorizing unlimited disclosure. This deletion also eliminated the provision of section 54-102r(g) making unauthorized disclosure a misdemeanor.

[23] Especially relevant to the present dispute is the 1995 Act's provisions concerning the role and duty of probation officers. Section 6(b) provides that any sex offender sentenced to probation must "immediately notify his . . . probation officer . . . whenever he changes his residence address," id. Section(s) 6(b) (codified at Conn. Gen. Stat. Ann. Section(s) 54-102s(b)), and requires the probation officer so informed to "notify the chief of police of the police department or resident state trooper for the municipality of the new address of the . . . probationer and any other law enforcement official he deems appropriate." Id. Section 6(c) of the 1995 Act then arguably authorizes broad disclosure by providing:

[24] Nothing in this section or section 54-102r of the general statutes, as amended by section 10 of this act, shall be construed to prohibit a . . . probation officer acting in the performance of his duties and within the scope of his employment from disclosing any information concerning the . . . probationer to any person whenever he deems such disclosure to be appropriate.

[25] Id. Section(s) 6(c) (codified at Conn. Gen. Stat. Ann. Section(s) 54-102s(c)) (emphasis added).

[26] 2. The OAP Policy

[27] Prior to 1995, the OAP had no policy or practice of notifying the general public of the criminal record of a probationer under its supervision. In the fall of 1995, the OAP promulgated a policy on sex offender notification procedures. See OAP Sex Offender Notification Policy (1995) ("the Policy"). The application of the Policy to the plaintiff is the focus of the pending lawsuit.

[28] The Policy became effective on October 1, 1995. See Memorandum from Michael E. Santese to Chief Probation Officers (Sept. 29, 1995). Its stated objective is "to enhance public safety and awareness." Policy at 1. Neither the coverage nor the operation of the Policy is entirely clear. In terms, the Policy applies to three categories of offenders under the supervision of the OAP: (1) persons convicted after January 1, 1995, of "sexual assault" (as defined by subsection 54-102r(a)(1)(A) of the Connecticut General Statutes), (2) persons convicted of "similar offenses in other states and transferred to Connecticut via the Interstate Compact," and (3) "[a]ny other person[] . . . determined through clinical assessment to be a high risk sex offender," Id.

[29] The first category is explicitly limited to those convicted after January 1, 1995. Whether the second *fn5 and third categories were intended to be so limited is not clear. What is clear, and relevant to this case, is that the OAP has interpreted the third category to apply to probationers without regard to their dates of conviction. See Memorandum of Michael Santese to Robert Bosco, Nov. 20, 1995. Using that interpretation, the OAP has applied the third category to the plaintiff in this case, whose conviction occurred prior to January 1, 1995. Plaintiff does not dispute this interpretation of the Policy; indeed, it is that interpretation that creates his ex post facto challenge.

[30] The Policy prescribes two levels of notification, purportedly correlated to the offender's risk of re-offense. The first level applies to all probationers meeting only the minimum criterion -- conviction of a listed sex offense. Policy at 3. As to such probationers, the OAP will disseminate various information concerning the offender, including his name, address, physical description, crime of conviction, sentencing, and special conditions of probation. Id. The information will be disclosed to specified members of the community, including victims of the offender's crime, victims' parents or guardians, the police, the offender's immediate family members, other occupants of the offender's residence or apartment, and treatment providers. *fn6

[31] The second, more extensive type of notification applies only to sex offenders who are "[d]etermined by clinical assessment" to fall within the category of "pedophiles, predatory rapists and other extreme cases." Id. at 1. For such persons, the OAP will provide information regarding their identity, background, and address not only to the previously mentioned recipients, but also to the offender's immediate neighbors, local schools, local day care providers, the offender's employer, officials of organizations in which the offender participates, and "Other At Risk Groups due to [the offender's] activities and/or proximity ([e.g.,] Scouts; Senior Citizen groups)." Id.

[32] This enhanced degree of notification for "extreme cases" applies to offenders, like plaintiff, who are in the third category of probationers, i.e., those "determined through clinical assessment to be a high risk sex offender." Id.; Transcript of Hearing, Feb. 29, 1996, at 88-90 (testimony of Michael Santese) (stating that terms like "extreme case" and "high risk" all "basically mean the same thing"). Though there is some question whether the Policy, as written, was intended to apply its enhanced level of notification to "pedophiles, predatory rapists and other extreme cases" convicted before January 1, 1995, the OAP has interpreted the Policy to make the enhanced level of notification applicable to such probationers and, pertinent to this case, to probationers like plaintiff who are in the "high risk" category, regardless of their dates of conviction. Memorandum from Michael Santese to probation officers, Dec. 26, 1995, at 1 ("Sex Offenders sentenced before 1/1/95 are also subject to notification, but only if they have been determined to be a pedophile, predatory rapist, or other extremely high risk case.").

[33] The determination of "extreme case" or "high risk" must be made by a treatment provider after conducting a clinical assessment. Clinical assessments of probationers are conducted by mental health counsellors employed by The Connections, Inc., a private nonprofit corporation under contract to the OAP. Although neither the OAP nor The Connections has promulgated criteria by which to determine whether a probationer qualifies as a "high risk" offender or a "pedophile[], predatory rapist[,] or other extreme case[]," an employee of The Connections testified in the District Court that a sex offender's risk of re-offending is determined by ten to thirteen variables, including the offender's degree of denial, the number of prior offenses, the nature of the offenses, the number of victims, and the age of the victims. Transcript of Hearing, Feb. 29, 1996, at 3-4 (testimony of David D'Amora).

[34] The OAP has not established any procedures through which a probationer can challenge or appeal an unfavorable clinical assessment or a decision by his probation officer to provide notification to persons perceived to be at risk from the offender. Moreover, the OAP considers its Policy "minimum requirements" that may be exceeded when individual probation officers determine, "in their professional judgment[,] [that] it is necessary to [do so] to prevent or reduce the risk of the sex offender re-offending." Policy at 3.

[35] 3. Prior Proceedings

[36] Plaintiff Roe was convicted in 1991 of six counts of sexual assault in the second degree and six counts of risk of injury to a minor. He was sentenced to a term of imprisonment of twelve years, with execution suspended after six years, and a consecutive five-year term of probation. At least one article detailing Roe's offenses and conviction was published in a local newspaper at the time of sentencing. Roe remained incarcerated until August 1994, when he was released on parole. Approximately three or four months later, Roe's parole was revoked when he violated a condition of parole by inviting a boy under the age of sixteen to his home. Roe was thereafter returned to prison to complete his sentence.

[37] Roe was released from prison in August 1995 and, pursuant to the probation component of his sentence, placed under the supervision of the OAP. Defendant Ronald Cormier is plaintiff's probation officer. The other defendants are also employees of the OAP: Robert Boscoe is the OAP's director, Michael Santese is the OAP's deputy director of operations, and Donald Popillo is Cormier's supervisor.

[38] In November 1995, Cormier informed Roe that he was a candidate for notification pursuant to the newly adopted Policy and ordered him to meet with William Hobson, a mental health counselor employed by The Connections. Although not a psychologist or psychiatrist, Hobson has extensive experience in the field of treatment of sexual offenders and has written several articles and book chapters in this area. *fn7 After conducting a one hour clinical interview with Roe, reviewing his probation records and parole board evaluation, and speaking with his regular therapist, Hobson concluded that Roe "poses a significant risk to reoffend." See Clinical Assessment of Roe, Dec. 20, 1995, at 3. Based on this determination, Cormier informed Roe that he would conduct community notification pursuant to the Guidelines because Roe qualified as a "high risk sex offender" under the third category of persons subject to the Policy's operation. *fn8

[39] Roe filed the present suit in January 1996, claiming that the OAP's decision to notify the public of his identity, background, and whereabouts constitutes punishment in violation of the Ex Post Facto Clause, deprives him of due process, violates equal protection, puts him twice in jeopardy for the same offense, infringes upon his right to privacy, and violates his plea agreement. Although the District Court issued a temporary restraining order in early January, Cormier had already faxed information concerning Roe to his building manager and his employer by that time. According to Roe, he has been asked to leave his place of residence by his landlord and has been ostracized at his place of employment as a result of Cormier's notification. However, the District Court made no factual findings in this regard.

[40] Although Roe requested the District Court to declare unconstitutional Connecticut's community notification statute, see Conn. Gen. Stat. Ann. Section(s) 54-102r, 54-102s (the 1994 Act as amended by the 1995 Act), the Court concluded that because Roe was not convicted of a listed offense on or after January 1, 1995, the "law by its terms does not apply to the plaintiff." *fn9 Roe, 938 F. Supp. at 1086. The Court therefore did not pass on the constitutional validity of any state law and focused its analysis exclusively on the OAP's Policy. Applying each of the seven considerations listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) to the facts of this case, *fn10 Judge Squatrito concluded that the community notification provisions of the Policy constitute punishment, and, therefore, that their application to Roe, who committed his crimes prior to the adoption of the Policy, violates the Ex Post Facto Clause. The District Court did not reach Roe's remaining contentions.

[41] Discussion

[42] On this appeal, the parties have tendered the sole issue of whether notification conducted pursuant to the Policy of the OAP "increase[s] the punishment for criminal acts," such that its application to Roe, who committed his offense prior to the Policy's issuance, would violate the ex post facto prohibition. See Collins v. Youngblood, 497 U.S. 37, 43 (1990). Preliminarily, we have some doubts as to whether that constitutional issue requires decision in this case. Those doubts arise from unresolved issues of state law, based on two contentions of the defendants.

[43] First, on this appeal, counsel for the defendants contend that the Policy was "prompted in part by the adoption of" the 1995 Act, and that "authority" for the Policy "is evidenced, in part, by the provisions" of the 1995 Act, quoted above, making clear that the 1995 Act does not prohibit disclosure by a probation officer "whenever he deems such disclosure to be appropriate." See Brief for Appellants at 6. To the extent that the Policy draws its authority from the 1995 Act, a state law issue arises as to whether the Policy applies to Roe, since that act applied only to those convicted after January 1, 1995. To whatever extent the Policy might be validated by the 1997 Act, this state law issue has been altered, and arguably removed, by the 1997 Act's elimination of the January 1, 1995, date limitation.

[44] Second, at the injunction hearing, the State took the position that the challenged notification was authorized by state law prior to issuance of the OAP's Policy. The OAP's deputy director for operations testified that Cormier was entitled, in the exercise of his (presumably statutory) authority as a probation officer, to make the notification of which plaintiff complains. See Transcript of February 29, 1996, Hearing at 94-95 (testimony of Michael Santese). *fn11 Counsel for the State defendants also contended that Cormier's notification was authorized without regard to the Policy. Arguing from caselaw that he asserted exposes a public officer to liability for a person's injuries when the officer knows of, but fails to advise a person of, a risk of such injuries, counsel said he did not "think anybody needs a statute authorizing them to warn somebody who is in danger." *fn12 Transcript of Feb. 29, 1996, hearing at 36. To the extent that the notification challenged by Roe is independent of the Policy as a matter of state law, no retroactive issue arises.

[45] These contentions frame state law issues to whether state statutes, either the 1995 Act or the statutes governing probation officers generally, authorize promulgation of the Policy, and, even if not, whether notification is a valid implementation of state common law concerning the notification duties of public officers, without regard to the Policy. *fn13 Though resolution of these state law issues adverse to the defendants might render unnecessary a decision as to the ex post facto challenge to the Policy, we consider it appropriate to adjudicate the challenge for several reasons. First, the Policy, even if not essential as authority for the notification that occurred, was relied on for such notification, and its constitutionality is sufficiently implicated to warrant decision. Second, the injunction on appeal was explicitly grounded on the ex post facto issue. Third, the issue is so clearly governed by our recent decision in Doe v. Pataki, supra, that resolving the issue requires no consideration of a new constitutional issue. We therefore proceed to the merits of the ex post facto issue.

[46] We use the same two stage analysis we applied in Doe v. Pataki, ___ F.3d at ___, as instructed by the Supreme Court, see Kansas v. Hendricks, 117 S. Ct. 2072, 2081-82 (1997); United States v. Ursery, 116 S. Ct. 2135, 2147 (1996); United States v. Certain Funds, 96 F.3d 20, 26 (2d Cir. 1996).

[47] 1. Intent

[48] Turning first to the OAP's intent in adopting the Policy, we conclude that the OAP's primary intent in adopting its notification policy was to protect the public from potentially dangerous probationers under its supervision. As the text of the Guidelines states: "Information on convicted sex offenders will be provided to police, victims and other relevant individuals and organizations in order to enhance public safety and awareness." Policy at 1; see also Departmental Message from Don Popillo to Professional Staff, Dec. 1, 1995, at 2 ("[P]ersons determined to be high risk sex offenders should be subject to this notification process for the protection of the community."). Another stated purpose of the notification policy tracks a general statutory responsibility of the OAP: to aid in the rehabilitation of probationers. Cf. Conn. Gen. Stat. Ann. Section(s) 54-105, 54-108. Under this theory, the awareness by the probation's neighbors that he poses a potential danger serves as an external control potentially helpful in preventing a relapse. As deputy director Santese summarized, "The main goal [of public notification] is to get the individual successfully through the period of probation without reoffending and have long-term rehabilitative effects." *fn14 Id. at 64. Whether notification will be effective with respect to either public safety or rehabilitation, the OAP was entitled to promulgate policies that it believed would serve these ends.

[49] We also conclude that the Policy's "objective manifestations," Mendoza-Martinez, 372 U.S. at 169, indicate that it serves these stated regulatory ends. The Policy does not subject a probationer convicted prior to January 1, 1995, to any form of notification, even if he has committed one of the listed offenses, unless there has been an individualized clinical assessment by a treatment provider that the probationer either presents a "high risk" of re-offense or can be regarded as a "pedophile[], predatory rapist[,] [or] other extreme case[]." This clinical assessment is conducted by an independent mental health counsellor, whose only objective is to determine whether the probationer presents a significant risk of recidivism. No notification will occur for probationers convicted of a listed offense prior to January 1, 1995, if they do not pose such a risk. In sum, whether notification occurs for those convicted before January 1, 1995, depends solely upon the offender's perceived risk of re-offense, and not upon the fact of his prior conviction. Moreover, the recipients of notification are limited to persons who may be endangered by the high-risk sex offender, for instance other occupants of the offender's residence or apartment, immediate neighbors, local schools and day care centers, the offender's employer, and other groups at risk due to the offender's activities or proximity.

[50] We conclude that the intent underlying the Policy was regulatory and that any burdens resulting from notification are incidental to those nonpunitive purposes. We therefore proceed to the second stage of the inquiry to determine whether the Policy is punitive in fact.

[51] 2. Punitiveness in Fact

[52] The plaintiff bears the "heavy burden" of overcoming the regulatory or remedial purpose served by notification, see Hendricks, ___ S. Ct. at ___, 1997 WL 338555 at *9, a burden that may be sustained only by the "clearest proof" that notification is "so punitive in form and effect" as to render it punitive despite the OAP's prospective, regulatory intent, see Ursery, 116 S. Ct. at 2148. Several factors combine to indicate that the plaintiff's challenge to Policy cannot satisfy this rigorous standard.

[53] First, as we ruled in Doe v. Pataki, the detrimental effects flowing from a statute will rarely be sufficient to transform an otherwise non-punitive measure into punishment, especially when the challenged governmental action consists solely of the dissemination to selected members of the community of information, nearly all of which is pubicly available. See Doe v. Pataki, ___ F.3d at ___. Second, notification is not "tied" to criminal activity in any significant sense. Although a probationer's prior conviction for a listed sex offense is a necessary prerequisite for notification, it is not sufficient to trigger it. Rather, the earlier conviction is only one aspect of an aggregate assessment of the probationer's potential to re-offend. Third, the Policy is not excessive in relation to its purpose of enhancing public awareness and helping to prevent the recovering offender from harmful relapses. Only seven crimes can trigger notification, only persons determined to pose a high risk of re-offense are subject to notification, and only persons potentially endangered by the offender's proximity or activities will receive notification.

[54] Fourth, there is no evidence that the Policy was intended to serve the goal of retribution, and the fact that it might deter probationers from committing sex crimes while on probation is not indicative of punitiveness. As the Supreme Court noted in Ursery, 116 S. Ct. at 2149, deterrence can serve both regulatory and punitive goals. Though making the public aware, through notification, of the offender's potential dangerousness might deter him from re-offending, this is done for the purpose of protecting at-risk populations and of ensuring that the offender does not stray from his rehabilitation. Fifth, as we discussed in Doe v. Pataki, ___ F.3d at ___, community notification is not analogous to either traditional stigmatization penalties or banishment. Modern day community notification measures serve vastly different purposes than those served by these historical punishments, operate without the physical participation of the offender, and lack the general social significance accompanying traditional shaming and banishment penalties. In sum, Roe has not provided the "clearest proof" that notification pursuant to the Policy constitutes punishment in fact.

[55] Moreover, one particular feature of the Policy is especially indicative of its non-punitive character: the requirement, for application to those convicted before January 1, 1995, of an individualized clinical determination of an offender's high potential for re-offense. Unlike most community notification schemes in effect around the country, including the New York version upheld in Doe v. Pataki, the OAP's Policy incorporates the clinical assessment of a mental health counselor directly into the determination of whether notification will occur for each potential subject of notification. The decision to notify is not made by a sentencing judge or even by a board of experts applying criteria generally relevant to the assessment of likelihood to re-offend. Instead, the critical responsibility rests with an expert in the field of sex offender behavior and treatment, who must make a prospective determination after an individualized examination and assessment of the offender.

[56] Conclusion

[57] As we noted in Doe v. Pataki with respect to Judge Chin's decision, we fully understand the conclusion reached in this case by Judge Squatrito and have carefully considered his thoughtful opinion. Nevertheless, in light of the constitutional standards as we believe they apply and particularly our recent precedent in Doe v. Pataki, we conclude that plaintiff's ex post facto challenge must be rejected. We therefore vacate the District Court's preliminary injunction and remand for further consideration, at least of plaintiff's remaining federal claims.

***** BEGIN FOOTNOTE(S) HERE *****

[58] *fn* The Honorable John C. Godbold of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.

[59] *fn1 The New York statute is the Sex Offender Registration Act, N.Y. Correct. Law Section(s) 168-168v (McKinney Supp. 1997). Statutes of this sort are called "Megan's Law," after Megan Kanka, the seven-year-old victim of a sexual assault and murder in New Jersey in 1994, which sparked enactment of sex offender registration and notification statutes in that state and several others.

[60] *fn2 "Sexual assault" also includes "any crime committed in any other state or jurisdiction the essential elements of which are substantially the same as any of the [seven] crimes" listed in subsection 54-102r(a)(1)(A). Id. Section(s) 54-102r(a)(1)(B).

[61] *fn3 A change of address must be reported if it occurs within ten years after the termination of a sentence or term of probation. Conn. Gen. Stat. Ann. Section(s) 54-102r(d).

[62] *fn4 Like the registration requirements, the notification provisions also applied to persons convicted of "any crime committed in any other state or jurisdiction the essential elements of which are substantially the same as any of the crimes" defined as "sexual assault" by subsection 54-102r(a)(1)(A). Id. Section(s) 10(a)(1)(B) (codified at Conn. Gen. Stat. Ann. Section(s) 54-102r(a)(1)(B)).

[63] *fn5 The reference in the Policy's second category to "similar offenses" appears to mean not only that the transferees committed the kinds of offenses listed for the first category but also that their convictions occurred after January 1, 1995. We do not decide the coverage of the second category, since it does not apply to the petitioner.

[64] *fn6 In addition to receiving general information concerning the offender's identity, whereabouts, and background, victims, victims' parents or guardians, and the police will also receive information concerning major status changes in the offender's life, such as a change of address or a change in the term or conditions of probation. See Conn. Gen. Stat. Ann. Section(s) 54-102r(a)(1)(A)-(B).

[65] *fn7 Because of his expertise, the OAP had invited Hobson to participate in the drafting of its Policy.

[66] *fn8 There is no indication that Cormier has decided to exceed the "minimum requirements" of the Policy.

[67] *fn9 Now that the 1997 Act has eliminated the January 1, 1995, date limitation, section 54-102r will apply to the plaintiff as of October 1, 1997, the effective date of the 1997 Act. See 1997 Act Section(s) 2.

[68] *fn10 The Supreme Court stated in Mendoza-Martinez that the following factors are "all relevant to the inquiry" of whether a statute is essentially penal or criminal in character:

[69] Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . .

[70] Id. at 168-69 (footnotes omitted).

[71] *fn11 The Deputy Director testified, "The adoption of the policies has not changed the authority of probation officers to do this. What it has done is put it into a framework and make it a policy-driven process as opposed to one that was simply left up to the discretion of the probation officer." Transcript of Sept. 29, 1996, hearing at 94-95.

[72] *fn12 The Deputy Director of the OAP expressed a similar thought:

[73] The [P]olicy does not rely upon [the 1995 Act]. It does not rely exclusively upon the law. The law, when it was passed, . . . provided an impetus for us to develop a policy regarding notification.

. . . .

[74] [The OAP] believes that [it] ha[s] the authority to provide information to members of the public when we think it is appropriate to do so, regarding persons under our supervision, specifically . . . when [it] believe[s] [that notification] will enhance public safety.

[75] Deposition of Michael Santese at 57-58.

[76] *fn13 We express no views on the merits of these state law issues, and leave them for future consideration, either in the District Court on remand, or, perhaps preferably, in the state courts in the event the District Court declines to exercise pendent jurisdiction over plaintiff's state law claims.

[77] *fn14 Santese explained that the Policy was promulgated to serve these dual non-punitive goals:

[78] There are several purposes [of the notification] polic[y]. Certainly one of the most important is public safety. It enables the recipients to have information that helps to protect them from becoming victims of sexual offenses. . . . [I]t also enhances the treatment process. . . . [Notification] helps to provide additional measures of -- adds to the offender's self-restraints . . . by virtue of the fact that knowing that others out there are aware of his circumstances . . . would act as an inhibitor . . . on [his desire to] engag[e] in any activities that might place [him] at risk of relapse or reoffending.

[79] Transcript of Hearing, Feb. 29, 1996, at 63 (testimony of Michael Santese). Santese also testified that notification "enhances the [probation] supervision process by providing other resources . . . of [] information [regarding the probationer's behavior] for the supervising probation officer." Id. at 64.

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]


19970908

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Russell v. Gregoire, 124 F.3d 1079, 97 Cal. Daily Op. Serv. 7137 (9th Cir. 09/04/1997)



[Editor's note: footnotes (if any) trail the opinion]

FOR PUBLICATION

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[2] WILLIE RUSSELL, JOHNNY STEARNS, Plaintiffs-Appellants,

v.

[3] CHRISTINE GREGOIRE, JAMES BLODGETT, CHASE RIVELAND, NORMAN STAMPER, NORM MALENG, ANNETTE SANDBURG, JAMES MONTGOMERY, LYLE QUASIM, EVERETT POLICE DEPT., JAMES SCHARF, Sheriff, JANET BARBOUR, Defendants-Appellees.

[4] No. 96-35398

[5] D.C. No. CV-95-01486-CRD

[6] OPINION

[7] Appeal from the United States District Court for the Western District of Washington

[8] Carolyn Dimmick, District Judge, Presiding

[9] Argued and Submitted November 5, 1996 -- Seattle, Washington

[10] Filed September 4, 1997

[11] Before: Eugene A. Wright, Melvin Brunetti, and Diarmuid F. O'Scannlain, Circuit Judges.

[12] Opinion by Judge O'Scannlain

[13] COUNSEL

[14] Todd Maybrown, Allen, Hansen & Maybrown, P.S., Seattle, Washington, for plaintiffs-appellants Johnny Stearns and Willie J. Russell.

[15] John J. Samson, Assistant Attorney General, Olympia, Washington, for the defendants-appellees.

[16] Sandra L. Cohen, Assistant City Attorney, City of Seattle, Seattle, Washington, for the defendants-appellees.

[17] Thomas W. Kuffel, Deputy Prosecuting Attorney, King County Prosecuting Attorney's Office, Seattle, Washington, for the defendants-appellees.

[18] Jill Vanneman, Assistant City Attorney, Everett City Attorney's Office, Everett, Washington, for the defendants-appellees.

[19] Leonard Schaitman and Wendy M. Keats, United States Department of Justice, Washington, D.C., for the amicus curiae.

[20] James E. Lobsenz, Seattle, Washington, for amicus curiae American Civil Liberties Union.

[21] OPINION

[22] O'SCANNLAIN, Circuit Judge:

[23] We must decide whether a Washington statute of the kind popularly referred to as "Megan's law" violates the Constitution.

I.

[24] Willie Russell and Johnny Stearns are both convicted sex offenders who have been released from confinement and are now residing in Washington State. Russell was convicted in Washington in 1989 of second degree rape and attempted second degree rape; Stearns was convicted in Washington in 1989 of first degree robbery and attempted second degree rape. Both were imprisoned. In 1990, the Washington legislature passed the Community Protection Act, 1990 Wash. Laws, ch. 3 ("the Act") which included provisions requiring sex offenders to register with local law enforcement authorities and subjecting some offenders to community notification of conviction information including the offender's photograph and approximate residential location.*fn1

[25] After their releases, both Russell and Stearns registered as required. Each learned that he would be subject to community notification under the Act. In early 1996, each filed civil rights actions under 42 U.S.C. Section 1983 against various state officials, including Washington Attorney General Christine Gregoire, claiming that the registration and notification provisions of the Act would deprive him of his constitutional rights, and requesting declaratory and injunctive relief. Specifically, each claimed that the Act violated the Ex Post Facto Clause, and abridged his rights to privacy and due process.

A.

[26] The Act requires both registration and notification. The registration element provides that any person convicted of a sex offense (or found not guilty by reason of insanity of a sex offense) register with the sheriff for the county of the person's residence. Wash. Rev. Code Section 9A.44.130(1). The offender must provide his or her name, address, date and place of birth, place of employment, crime for which he or she was convicted, date and place of conviction, aliases used, and social security number. Id. at Section 9A.44.130(2). The sheriff must obtain a photograph and a copy of the offender's fingerprints. Id. at Section 9A.44.130(5). The information is forwarded to the Washington State Patrol for inclusion in a central registry. Id. at Section 43.43.540.

[27] A sex offender released from custody must register within 24 hours of his or her release; sex offenders who change addresses must register within 10 days of the change. Id. at Section 9A.44.130(3)(a). The Act also requires a sex offender convicted in another jurisdiction to register within 30 days of moving into Washington. Id. If a sex offender changes residences, he or she must notify the sheriff 14 days before moving, or, if not within 14 days, as soon as the new address is known. Id. at Section 9A.44.130(4). Failure to register within the time required is punishable as a Class C felony or gross misdemeanor depending on the degree of the offender's underlying sex offense. Id. at Section 9A.44.130(7).

B.

[28] The notification element authorizes public agencies to release "relevant and necessary information" regarding a sex offender*fn2 to the public when "necessary for public protection." Id. at Section 4.24.550. The Washington Supreme Court*fn3 has held that "a public agency must have some evidence of an offender's future dangerousness, likelihood of reoffense, or threat to the community, to justify disclosure to the public in a given case." State v. Ward, 869 P.2d 1062, 1070 (Wash. 1994). "An agency must disclose only that information relevant to and necessary for counteracting the offender's dangerousness." Id. Any notice given to the public must contain a warning against violence towards the offender. Id. Further, information may only be disseminated within a narrow geographic area. Id. at 1070-71.

[29] Prior to an offender's release, Washington's Sex Offender Oversight Committee reviews information provided by the Department of Corrections to assess the seriousness level of the offender. If an offender is classified as Level One, no public notification occurs. If an offender is classified as Level Two, standard notification forms are provided to government and law enforcement agencies, to schools within the federal census tract where the offender is living, and to Block Watch Captains in that census tract and the adjoining census tracts.

[30] If an offender is classified as Level Three, notification forms are distributed in the same way, but are also provided to local news media. Russell and Stearns were each classified as Level Three offenders.

[31] The notification form provides the offender's picture, name, age, date of birth, and other identifying information. It also contains a summary of the offender's crime and the general vicinity of the offender's residence. It does not contain the offender's exact address, nor does it contain any information about the offender's employment. Finally, the form has a long "caveat" regarding the information contained in the notice, including a warning that threats, intimidation, or harassment of the offender "will not be tolerated."

C.

[32] The district court granted and renewed Temporary Restraining Orders in favor of Russell and Stearns, preventing law enforcement agencies from making the statutory notification to the community until hearing argument on their motions for preliminary injunction. After a hearing, the district court denied their motions for preliminary injunction, thus permitting notification. Russell and Stearns filed this timely joint appeal from the order denying a preliminary injunction.

II.

[33] A preliminary injunction may issue "if the movant has shown either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor." Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1438 (9th Cir. 1997) (quotation marks and citation omitted).

[34] We review the district court's order denying a preliminary injunction for an abuse of discretion, which occurs if the district court bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. Does 1-5 v. Chandler, 83 F.3d 1150, 1152, (9th Cir. 1996). We review de novo the legal issues underlying the decision to deny an injunction, as well as the conclusion that plaintiffs are likely to fail on the merits of those issues. International Molders' and Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986).*fn4

III.

[35] Article I, Section 10 of the Constitution provides:"No State shall . . . pass any . . . ex post facto Law . . . ." It prohibits the states from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867)). "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some sort of `disadvantage,' . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dep't of Corrections v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995); see Collins v. Youngblood, 497 U.S. 37, 50-52 (1990). Since Russell and Stearns argue that the Act is an ex post facto law, the principal question presented in this case is whether the registration and notification provisions impose "punishment."

A.

[36] Our court has not previously established a clear test to determine what constitutes punishment under the Ex Post Facto Clause. Likewise, the Supreme Court has not articulated a "formula" for identifying the legislative changes that fall within the constitutional prohibition. Morales, 115 S. Ct. at 1603.

[37] In Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), a case dealing with the procedural safeguards of the Fifth and Sixth Amendments, the Court enumerated factors to be considered:

[38] Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-- retribution and deterrence, whether the behavior to which it applies is already a crime, whether alternative purposes to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

[39] Id. at 168-69. As the Court later noted, however, Mendoza-Martinez's list of considerations is often "helpful" but is "certainly neither exhaustive nor dispositive. " United States v. Ward, 448 U.S. 242, 249 (1980).

[40] The Supreme Court has decided a series of punishment cases recently, including United States v. Ursery, 116 S. Ct. 2135 (1996).*fn5 Ursery held that in rem civil forfeitures were not punishments under the Double Jeopardy Clause. In reaching that conclusion, the Court returned to the two-part test for punishment it announced in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), which we shall call the "intent-effects" test. "First, we ask whether Congress intended proceedings . . . to be criminal or civil. Second, we turn to consider whether the proceedings are so punitive in fact as to `persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature,' despite Congress' intent." Ursery, 116 S. Ct. at 2147 (quoting 89 Firearms, 465 U.S. at 366). The Court in Ursery applied a broad view of non-punitive purposes for the provision, and allowed only "the `clearest proof' " of a punitive effect to overwhelm a nonpunitive purpose. Id. at 2147-48; Sardone, 94 F.3d at 1235-36. And although the Court did not explicitly cite Mendoza-Martinez, its analysis under the "effects " prong examined many of the Mendoza-Martinez factors: whether the statute has non-punitive goals or effects, whether the sanction has historically been regarded as punishment, whether scienter is required, and whether it is tied to criminal activity. Ursery, 116 S. Ct. at 2148-49.

B.

[41] On the surface, it would appear that Ursery's version of the "intent-effects" test should govern this case. After we had oral argument in this case, however, the Supreme Court handed down two decisions construing the Ex Post Facto Clause: Lynce v. Mathis, 117 S. Ct. 891 (1997), and Kansas v. Hendricks, 117 S. Ct. 2072. We must first determine the impact of Lynce and Hendricks on the Ursery test for punishment.

1.

[42] In Lynce, Florida had granted early release credits to state prisoners to alleviate prison overcrowding. It later revoked those credits for certain violent offenders, including Lynce, who had already been released. As a result, Lynce was rearrested and incarcerated. The Court ruled that the application of the revocation to Lynce violated the Ex Post Facto Clause.

[43] Lynce is the latest installment in the line of cases dealing with changes in the law that decrease the chances that a prisoner will be released from prison early or will receive a shorter prison term. This line began with Lindsey v. Washington, 301 U.S. 397 (1937), which held that a retrospective law setting a minimum prison sentence was ex post facto "since the measure of punishment prescribed by the later statute is more severe than that of the earlier." Id. at 401. Later, the Court decided Weaver v. Graham, 450 U.S. 24 (1981), ruling that a law reducing the availability of "gain time" credits for early release for prisoners violated the Ex Post Facto Clause because it made "more onerous the punishment for crimes committed before its enactment." Id. at 36. Then, in Miller v. Florida, 482 U.S. 423 (1987), the Court, quoting language from both Lindsey and Weaver, invalidated the retrospective application of a state sentencing guidelines statute which increased the petitioner's presumptive prison sentence. Id. at 432-35.

[44] Each case in the Lindsey-Weaver-Miller trio contained language suggesting that enhancements to the measure of punishment are prohibited by the Ex Post Facto Clause because they operate to the "disadvantage" of covered offenders. See Lindsey, 301 U.S. at 401; Weaver, 450 U.S. at 29; Miller, 482 U.S. at 433. In Collins v. Youngblood, 497 U.S. 37, 41 (1990), however, the Supreme Court conducted an extensive examination of the original understanding of the Ex Post Facto Clause and disapproved of similar "disadvantage " language. The Court went a step further in California Dep't of Corrections v. Morales, 115 S. Ct. 1597 (1995), which upheld California's retrospective increase in the time between parole hearings for serious offenders. Morales expressly repudiated the Lindsey-Weaver-Miller trio's "disadvantage" language and stated that it "was unnecessary to the results in those cases and is inconsistent with the framework developed in Collins." Id. at 1602 n.3 (citation omitted). Instead, "the focus of the ex post facto inquiry is . . . on whether a legislative change . . . alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Id.

[45] What is the common thread of these cases? When seen in the light of the Collins-Morales framework, Lindsey, Weaver, Miller, and Morales each turned on whether the change increased the quantum of punishment attached to an already-committed crime. The Court in those cases had no need to determine the threshold question of whether the sanction was punishment since a criminal sentence of imprisonment is plainly punishment. Properly viewed, these are not punishment-defining cases at all.

[46] Lynce is no different. It focuses on whether the Florida statute increased Lynce's punishment--not on whether Lynce's reimprisonment was punishment in the first place. See, e.g., Lynce, 117 S. Ct. at 895 ("The narrow issue that we must decide is . . . whether [the] consequences[of the law] disadvantaged petitioner by increasing his punishment."); id. at 897 ("[Morales concluded that] the change at issue had neither the purpose nor the effect of increasing the quantum of punishment."); id. at 898 n.16 (distinguishing Morales because statutory scheme there was not "more`onerous' "). Most significantly, Lynce does not even mention Ursery or the other cases addressing whether a particular sanction is punishment, but confined itself to a discussion of Lindsey, Weaver, Miller, and Morales.

[47] Understanding Lynce's place in the Court's jurisprudence is important for our decision today. Russell and Stearns point out in their supplemental brief that Lynce contains a discussion of the limited role of legislative intent in examining whether a sanction increases the quantum of punishment. See id. at 897. They argue that Lynce thereby discards, sub silentio, Ursery's "intent-effects" test.

[48] We reject this argument for two reasons. First, Lynce teaches only that legislative intent is not generally relevant to whether the amount of a given punishment has increased. Lynce did not question whether the prison sentence was punishment, but only whether a decrease in early release credits increased that punishment. In contrast, intent is very important in determining whether a particular sanction is punishment in the first place. Ursery, 116 S. Ct. at 2147. These are distinct questions, and legislative intent is crucial in answering the latter, but not necessarily so in answering the former.

[49] Second, the Court has just reiterated the primacy of legislative intent in Hendricks, to which we now turn. Hendricks involved Kansas' Sexually Violent Predator Act, which establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or "personality disorder," are likely to engage in "predatory acts of sexual violence." Hendricks, 117 S. Ct. at 2076. The Court ruled that, even though sexual predators are confined in state institutions, the Kansas Act does not constitute punishment and therefore does not violate the Ex Post Facto and the Double Jeopardy Clauses. In reaching its conclusion, the Court applied essentially the same test for punishment as in Ursery:

[50] We must initially ascertain whether the legislature meant the statute to establish "civil" proceedings. If so, we ordinarily defer to the legislature's stated intent. . . .

[51] Although we recognize that a "civil label is not always dispositive," we will reject the legislature's manifest intent only where a party challenging the statute provides "the clearest proof" that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil.

[52] Id. at 2082 (citation and brackets omitted). To prove that a civil proceeding imposes punishment is a "heavy burden." Id. Indeed, even if the legislature's non-punitive purpose was merely ancillary to another overriding or primary purpose of the statute, a court may conclude that the statute is not punitive. Id. at 2082.

[53] The Court went on to note that the Kansas statute does not implicate either of the two primary objectives of criminal punishment, retribution and deterrence, and does not turn on a finding of scienter. Id. at 2082. That the statute imposes an affirmative restraint and imposes a sanction traditionally regarded as punishment does not override its non-punitive nature. Id. at 2079.

C.

[54] [1] Where does the Ursery punishment test stand now? We are persuaded that the Court's approach to the punishment question is essentially the same in both Ursery and Hendricks. Nothing in Lynce is to the contrary. Consequently, we will apply the Ursery-Hendricks "intent-effects" test to determine whether the Act imposes punishment.*fn6 When examining whether a law violates the Ex Post Facto Clause, we inquire whether (1) the legislature intended the sanction to be punitive, and (2) the sanction is "so punitive" in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the legislature's intent. Ursery, 116 S. Ct. at 2147; see Hendricks, 117 S. Ct. 2080. The first part of the test ("intent") looks solely to the declared purpose of the legislature as well as the structure and design of the statute.*fn7 Ursery, 116 S. Ct. at 2147 (examining terms used by Congress and structure of forfeiture statute under first part of test); see United States v. Huss, 7 F.3d 1444, 1447 (9th Cir. 1993) (deciding pre-Ursery that court should look to intent and design of statute as well as effects). The second part of the test ("effects") requires the party challenging the statute to provide "the clearest proof" that the statutory scheme is so punitive either in purpose or effect as to negate the State's non-punitive intent. Hendricks, 117 S. Ct. at 2082; Ursery, 116 S. Ct. at 2148. See Flemming v. Nestor, 363 U.S. 603, 617 (1960) ("[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute on [the ground that the `history and scope' of the statute reveal a punitive purpose notwithstanding the legislative intent]."). In assessing the Act's effects, we shall refer to the appropriate Mendoza-Martinez factors. See Hendricks, 117 S. Ct. at 2079-80, 2082 (considering some Mendoza-Martinez factors); Ursery, 116 S. Ct. at 2148-49 (same).

IV.

[55] We now turn our attention to the registration portion of the Act. Applying the "intent-effects" test, we must first look at the language of the statute to see if we may discern the legislature's intent.

A.

[56] Section 401 of the Act declares:

[57] The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement's efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency's jurisdiction. Therefore, this state's policy is to assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in section 402 of this act.

[58] 1990 Wash. Laws, ch. 3, Section 401. The Supreme Court of Washington looked no further than this recital in determining the intent of the Legislature, noting that the statement of purpose evidences an unequivocal regulatory motivation, State v. Ward, 869 P.2d at 1068, and we agree.

[59] [2] The overall design of the statute's registration provisions indicates a regulatory, not punitive, intent. Registration does no more than apprise law enforcement officials of certain basic information about an offender living in the area. It places no restraint on the offender's movements; an offender need only notify the sheriff of any change of address 14 days before moving, or, if not within 14 days, as soon as the new address is known. Wash. Rev. Code Section 9A.44.130(4). He or she may do so by simply mailing a written notice to the sheriff. Id. The information required to be divulged in registering is not burdensome--an offender must provide his or her name, address, date and place of birth, place of employment, crime of conviction, date and place of conviction, aliases used, and social security number. Id. atS 9A.44.130(2). A less-serious offender's duty to register terminates after 10 or 15 years, depending on the class of the underlying offense. Id. at Section 9A.44.140(1). These provisions evidence a clear intent to monitor the whereabouts of the offender; we are satisfied that they do not manifest any intent to punish.

B.

[60] The second part of the "intent-effects" test asks whether Russell and Stearns have provided "the clearest proof" that the sanction is "so punitive" in effect that it overcomes the non-punitive legislative intent. Their only argument on this point is that the registration requirement imposes an affirmative duty to register and a criminal penalty for failure to do so --a situation they claim is analogous to Weems v. United States, 217 U.S. 349 (1910), and United States v. Paskow, 11 F.3d 873 (9th Cir. 1993). Those cases are properly distinguished, however.

[61] In Weems, the Supreme Court examined whether a sentence imposed under Philippine law for falsifying a public document--a crime committed by the mere misstatement of facts in a public document even if there was no intent to defraud or actual injury to another--was cruel and unusual punishment. Weems was sentenced to twelve years "hard and painful" labor while shackled at wrist and ankle,"civil interdiction" (loss of property rights, marital rights, and rights of parental authority), perpetual loss of political rights, and perpetual "surveillance" which included notifying authorities of his domicile and obtaining written permission to change residences. The Court concluded that the sentence was cruel and unusual punishment because it was disproportionately harsh when compared to the crime committed. Weems, 217 U.S. at 380-81. In describing the harsh nature of the sentence, the Court discussed the burdens of "surveillance".*fn8 Russell and Stearns latch on to this dictum as demonstrating the severe effects of registration. With clever ellipses, however, they omit from their quotation the fact that Weems not only had to inform the authorities of his domicile, but also had to obtain written permission from them to change residences. Obtaining permission to move is a much greater burden than simple registration, and the Court's language should be read with this sanction in mind. Even the Third Circuit, which has formulated a much broader test for punishment, concluded that, especially in light of the other harsh penalties imposed on Weems, "the Court's dictum about the harshness of `surveillance' hardly establishes that registration is`punishment.' " Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1266 (3rd Cir. 1996) (addressing New Jersey's sex offender registration requirement).

[62] Paskow involved an offender whose supervised release was revoked after he violated the terms of that release. A statute passed after he committed the underlying offense--but before he violated the terms of his supervised release--imposed a mandatory minimum period of revocation, which we held violated the Ex Post Facto Clause. Paskow, 11 F.3d at 875-76. Paskow is distinguishable, however, because anyone punished for failing to register under the Act is being punished for a new offense, and hence no ex post facto problem exists. In Paskow, we noted that "[r]evocation of parole is not a punishment for a new offense, although the conduct on which revocation is based may be punished separately. For revocation purposes, the conduct simply triggers the execution of the conditions of the original sentence." Id. at 881.

[63] [3] We emphasize that the crime of failing to register under the Act constitutes a separate offense. The fact that a prior conviction for sexual misconduct is an element of the "failure to register" offense is of no consequence. It is hornbook law that no ex post facto problem occurs when the legislature creates a new offense that includes a prior conviction as an element of the offense, as long as the other relevant conduct took place after the law was passed. The Supreme Court has recently suggested as much. See United States v. Watts, 117 S. Ct. 633 (1997).

C.

[64] [4] A consideration of the other Mendoza-Martinez factors does not support a finding that registration has a punitive effect: no affirmative restraint or disability is imposed; registration is typically and historically a regulatory measure; it does not have a retributive purpose but does have legitimate non-punitive purposes; and it is not excessive given the state interest at stake. Although registration arguably has a deterrent effect, Ursery declared that deterrence can serve both civil and criminal goals. Ursery, 116 S. Ct. at 2149 (citing Bennis v. Michigan, 116 S. Ct. 994, 1000 (1996). Ursery also noted that the fact that a sanction may be tied to criminal activity alone is insufficient to render the sanction punitive. Id.; see Hendricks, 117 S. Ct. at 2082.

[65] [5] Finally, registration provisions have overwhelmingly been sustained as constitutional by other courts. See, e.g., Doe v. Pataki, Nos. 96-6249(L), 96-6269, slip op. at 4 (2d Cir. Aug. 22, 1997); Artway, 81 F.3d at 1267; Doe v. Kelley, 961 F.Supp. 1105 (W.D. Mich. 1997); Doe v. Weld, 954 F.Supp. 425 (D. Mass. 1996); People v. Afrika, 648 N.Y.S.2d 235 (N.Y. Sup. Ct. 1996); Doe v. Poritz, 662 A.2d 367 (N.J. 1995); State v. Costello, 643 A.2d 531, 533 (N.H. 1994); State v. Noble, 829 P.2d 1217, 1224 (Ariz. 1992); Kitze v. Commonwealth, 475 S.E.2d 830 (Va. Ct. App. 1996); State v. Manning, 532 N.W.2d 244 (Minn. Ct. App. 1995). But cf. Rowe v. Burton, 884 F.Supp. 1372 (D. Alaska 1994) (holding registration is punitive where dissemination of information will result). In another case addressing the ex post facto implications of the Act, a different district judge in the Western District of Washington has concluded that the registration provision of the Act is constitutional, and we agree. Doe v. Gregoire, 960 F.Supp. 1478, 1484 (W.D. Wash. 1997).

[66] [6] Thus, we are satisfied that, as a matter of law, the registration provisions of the Act do not amount to punishment subject to the Ex Post Facto Clause.

V.

[67] [7] We next turn to the notification portion of the Act. The statute authorizes "[p]ublic agencies . . . to release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection." Wash. Rev. Code Section 4.24.550(1). The Washington Supreme Court construed this provision as requiring a public agency to "have some evidence of an offender's future dangerousness, likelihood of reoffense, or threat to the community, to justify disclosure to the public in a given case. This statutory limit ensures that disclosure occurs to prevent future harm, not to punish past offenses." State v. Ward, 869 P.2d at 1070. The court also found an implied geographic limitation on the dissemination of the information. Id. at 1070-71. Notification provides the public with the offender's name, picture, age, date of birth, facts regarding the offender's convictions, and the general vicinity of the offender's domicile. The notification form also contains a caveat and a statement that harassment "will not be tolerated."

[68] The district court considered the overall design of the notification regime, including the additional requirements imposed by the Washington Supreme Court, and concluded that notification is not punitive.

A.

[69] As we did in the analysis of the registration provision, in applying the "intent-effects" test, we look first to the language of the notification provision of the statute.

[70] Section 116 of the Act provides:

[71] The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is a paramount governmental interest. The legislature further finds that the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Overly restrictive confidentiality and liability laws governing the release of information about sexual predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public's interest in public safety and in the effective operation of government. Release of information about sexual predators to public agencies and under limited circumstances, the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.

[72] Therefore, this state's policy as expressed in section 117 of this act is to require the exchange of relevant information about sexual predators among public agencies and officials and to authorize the release of necessary and relevant information about sexual predators to members of the general public.

[73] 1990 Wash. Laws, ch. 3, Section 116.

[74] The Washington Supreme Court read this pronouncement as "a clear regulatory intent to limit the exchange of relevant information to the general public to those circumstances which present a threat to public safety." State v. Ward, 869 P.2d at 1070. Russell and Stearns do not contend that the legislature intended the notification provisions to be punitive; instead, they argue that the law was enacted in an "hasty and impassioned response to public outcry" after a young boy was attacked by a sex offender. The Ex Post Facto Clause was designed to prevent exactly this sort of legislative action, they say.

[75] [8] The language of section 116 makes clear that the legislature intended the notification provision to prevent future attacks by recidivist sex offenders, and that the law may have a deterrent purpose as well as a remedial one. Neither of these purposes would result in an ex post facto violation, however. There is no indication that the legislature intended to punish already-convicted offenders (rather than merely deterring them or preventing future crimes). However quickly a law was passed, and however heated the public sentiment around it, we look to the legislature's manifest intent--which is found in the text and structure of the law. See Hendricks, 117 S. Ct. at 2082.

[76] [9] The text and structure of the notification provisions reveal no intent to punish, but rather a regulatory purpose. Notification occurs only "when the release of the information is necessary for public protection." Wash. Rev. Code Section 4.24.550(1). The notification generally must occur two weeks in advance of the offender's release from prison in order to allow "communities to meet with law enforcement to discuss and prepare for the release, to establish block watches, to obtain information about the rights and responsibilities of the community and the offender, and to provide education and counseling to their children." 1994 Wash. Laws, ch. 129, Section 1. Notification is thus designed to avoid a hasty or retaliatory response from the community. The law is tailored to help the community protect itself from sexual predators under the guidance of law enforcement, not to punish sex offenders.*fn9

[77] [10] Any remaining doubt about the purpose of the law is dispelled by the construction given it by the Washington Supreme Court, which we must regard as authoritative. The law contains careful safeguards to prevent notification in cases where it is not warranted and to avoid dissemination of the information beyond the area where it is likely to have the intended remedial effect. State v. Ward, 869 P.2d 1062, 1070-71 (Wash. 1994). Only information "relevant to and necessary for counteracting the offender's dangerousness" is disclosed, and always accompanied by a warning against violence toward the offender. Id. A law designed to punish an offender would not contain these strict limitations on notification.

B.

[78] As to the second part of the "intent-effects" test, the question again is whether there is "the clearest proof" that the notification provision is so punitive in effect as to overcome the nonpunitive legislative intent. We consider the relevant Mendoza-Martinez factors, including the historical use of notification provisions, in this part of the test.

[79] As Ursery noted, the most significant question under this stage of the analysis is whether the law, "while perhaps having certain punitive aspects, serve[s] important non-punitive goals." Ursery, 116 S. Ct. at 2148. Russell and Stearns argue that notification serves the goal of deterrence, which is a traditional goal of punishment. This overlooks the statements in Ursery and Bennis v. Michigan that a deterrent purpose can serve both civil as well as criminal goals. Id . at 2149; Bennis v. Michigan, 116 S. Ct. 994, 1000 (1996). That a sanction has a deterrent purpose does not make it punitive. Tort law, for example, attempts to deter certain conduct but neither imposes punishment nor is criminal in nature. See Bennis, 116 S. Ct. at 1000.

[80] [11] Although the Act may implicate deterrence, it does not implicate the other primary objective of criminal punishment, retribution, because it neither labels the offender as more culpable than before (though his or her culpability may be more widely publicized), nor does it turn on a finding of scienter. Some persons who have not been convicted of a sex offense may be subject to notification--those incompetent to stand trial, or committed as sexual psychopaths or sexually violent predators, for example. See Wash. Rev. CodeS 4.24.550(3). These are three of the hallmarks that distinguish retributive sanctions from other sanctions. See Hendricks, 117 S. Ct. at 2082 (discussing retributive sanction as that which affixes culpability for prior criminal conduct, turns on a finding of scienter, and is triggered by a criminal conviction). Instead, the Washington notification provision has both strong remedial aspects and serves important non-punitive goals: alerting the community to the presence of sexual predators adjudged likely to offend again, and giving guidance to the community to allow it to avert new and tragic sexual offenses.

[81] Next, Russell and Stearns strenuously argue that many historical punishments depended on the punitive effect of public notification--the "sting" of shame and humiliation. They claim that public notification is punishment because the punishments of the past--pillorying, branding, or the sanction described in Hawthorne's The Scarlet Letter--notified the community of the offender's misdeeds.

[82] Although historical punishments did notify the community and humiliate the offender, an adequate historical analysis is not that simple. Unlike the civil forfeiture provisions at issue in Ursery and United States v. Austin, 509 U.S. 602 (1993), the notification provisions of the Act do not have identical historical antecedents. See W.P. v. Poritz, 931 F.Supp. 1199, 1215 (D.N.J. 1996). History does not tell us whether this sort of notification ought to be regarded as punishment. At best, we can draw an analogy between the Act and the punishments of yesteryear. That analogy is not unassailable, however. Historical shaming punishments like whipping, pillory, and branding generally required the physical participation of the offender, and typically required a direct confrontation between the offender and members of the public. As the Third Circuit recently stated: "Public shaming, humiliation and banishment all involve more than the dissemination of information. . . . [T]hese colonial practices inflicted punishment because they either physically held the person up before his or her fellow citizens for shaming or physically removed him or her from the community." E.B. v. Verniero, Nos. 96-5132, 96-5416, 1997 WL 473107, at *23 (3rd Cir. Aug. 20, 1997). Put another way, "the potential ostracism and opprobrium that may result from [notification] is not inevitable, as it was with the person whipped, pilloried or branded in public. " Poritz, 931 F.Supp. at 1217. More importantly, the Washington law is not intended to be punitive--it has protective purposes-- while shaming punishments "were intended to and did visit society's wrath directly upon the offender." Id.

[83] Other historical analogies are also instructive. It is at least as appropriate to compare the notification law to "wanted" posters and warnings about escaped prisoners or other dangerous persons--practices that have not been regarded as punishment, though they disclose essentially the same information, may rouse public excitement, and may carry a greater risk of vigilantism.

[84] [12] This discussion reveals the perils of using historical parallels to determine whether a sanction is punishment. True, punishment in the past often relied on humiliation. But humiliation alone does not constitute punishment. A law imposing punishment has other ingredients--most importantly, an intent to punish. See Ursery, 116 S. Ct. at 2147. As the Supreme Court has repeatedly stated, a statute does not punish merely because it works a detriment. Morales, 115 S. Ct. at 1602 n.3; see Flemming v. Nestor, 363 U.S. 603, 616 (1960) (noting that "often-severe effects" of a regulation do not make it punishment). Plastering "wanted" posters all over town works a detriment to the person named in them, but even if he or she is innocent, there has been no punishment. See Paul v. Davis, 424 U.S. 693 (1976) (holding that man wrongly identified in police flier as active shoplifter not deprived of liberty or property interest).

[85] [13] We are not persuaded that the analogy to historical shaming punishments is strong enough to overcome the law's non-punitive intent. Without an identical historical antecedent, and with other persuasive analogies to non-punitive traditional practices, we cannot conclude that there is "clear proof" of an overwhelming punitive effect.

[86] Next, Russell, Stearns and amicus curiae American Civil Liberties Union object that public notification imposes an affirmative disability or restraint because notification has a devastating effect on the offenders' personal and professional lives. Similarly, they claim that notification leads to excessively harsh results, including threats, ostracism, harassment, and vigilantism.

[87] [14] Notification may well subject offenders to humiliation, public opprobrium, ostracism, and the loss of job opportunities. We actively weigh these detriments to offenders. But our inquiry into the law's effects cannot consider the possible "vigilante" or illegal responses of citizens to notification. Such responses are expressly discouraged in the notification itself and will be prosecuted by the state. See Poritz, 931 F.Supp. at 1212. Indeed, courts must presume that law enforcement will obey the law and will protect offenders from vigilantism. See Artway, 81 F.3d at 1267.

[88] [15] We conclude that, considering the entire range of possible community responses not prohibited by Washington law, the Act's effect is not so egregious as to prevent us from viewing the Act as regulatory or remedial. In doing so, we are sensitive to the fact that the Act may have a lasting and painful impact on a sex offender's life, which ought not be lightly disregarded. Yet, we cannot say that the Act violates the Constitution. Other regulatory sanctions have had harsh effects similar to the community's likely response and have been upheld. See 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); Mahler v. Eby, 264 U.S. 32 (1924) (deportation); Flemming v. Nestor, 363 U.S. 603 (1960) (termination of Social Security benefits)). Moreover, "whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the `sting of punishment.' " Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1945 n.14.*fn10

C.

[89] [16] In sum, we conclude that the notification provisions were intended to be regulatory and not punitive. Weighing all of the considerations discussed above, and with an eye to the remaining Mendoza-Martinez factors, we hold that, as a matter of law, the possible effects of the notification provision are not so punitive in fact as to prevent us from legitimately viewing the Act as regulatory in nature. Even less do the possible effects amount to "the clearest proof" of a punitive effect sufficient to overcome the legislature's nonpunitive intent. This is especially so given the strong remedial goals of the notification provision. The notification provisions of the Act do not amount to punishment subject to the Ex Post Facto Clause. See Doe v. Pataki, Nos. 96-6249(L), 96-6269, slip op. at 4 (2d Cir. Aug. 22, 1997); E.B., 1997 WL 473107, at *1; Doe v. Kelley, 961 F.Supp. 1105 (W.D. Mich. 1997); Doe v. Weld, 954 F.Supp. 425 (D. Mass. 1996); W.P. v. Poritz, 931 F.Supp. 1199 (D.N.J. 1996); People v. Afrika, 648 N.Y.S.2d 235 (N.Y. Sup. Ct. 1996); Opinion of the Justices to the Senate, 423 Mass. 1201 (1996). But see Roe v. Office of Adult Probation, 938 F.Supp. 1080 (D.Conn. 1996); State v. Myers, 923 P.2d 1024 (Kan. 1996).*fn11

VI.

[90] Russell and Stearns contend that the Act is constitutionally infirm because the accumulation and dissemination of information about them violates their right to privacy. They do not pinpoint the source of the right or identify its contours, however, and they fail to explain precisely how the Act violates it beyond collating and releasing information. For support, they cite only two cases, Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Adm'r of Gen. Servs., 433 U.S. 425 (1977), which they claim stand for the proposition that the mere collection of private information may constitute a violation of a constitutional right to privacy.

[91] Russell and Stearns are mistaken about the import of Whalen and Nixon. Neither established a general constitutional right to privacy in information collected in a database; instead, both cases noted that, if there was such a right, it was not violated by the provisions at issue.

[92] In Whalen, the Supreme Court upheld a New York statute that created a centralized computer file of the names and addresses of all persons who obtained certain prescription drugs. In doing so, the Court stated that, at most, the collection and use of such information by the government is accompanied only in some circumstances by an arguable constitutional duty to avoid unwarranted disclosures. Whalen, 429 U.S. at 598-604, 605-606. This is a far cry from the supposed right Russell and Stearns assert.

[93] Similarly, Nixon upheld the Presidential Recordings and Materials Preservation Act, which provided for temporary public custody of Presidential tapes and papers, against a right to privacy challenge by former President Nixon. In that case, the Court restated Whalen's dictum that"[o]ne element of privacy has been characterized as `the individual interest in avoiding disclosure of personal matters,' " Nixon, 433 U.S. at 457 (quoting Whalen, 429 U.S. at 599), but concluded that, to the extent there is such a right, it is not violated if the statute contains safeguards against "undue dissemination". Id. at 458.

[94] [17] In this case, the collection and dissemination of information is carefully designed and narrowly limited. Even if Whalen and Nixon had established a broad right to privacy in data compilations, the Act does not unduly disseminate private information about Russell and Stearns.

[95] [18] Moreover, any such right to privacy, to the extent it exists at all, would protect only personal information. Whalen v. Roe, 429 U.S. 589, 599 (1977). The information collected and disseminated by the Washington statute is already fully available to the public and is not constitutionally protected, see Doe v. New York, 15 F.3d 264, 268 (2d Cir. 1994), with the exception of the general vicinity of the offender's residence (which is published) and the offender's employer (which is collected but not released to the public). Neither of these two items are generally considered "private." Johnson v. Sawyer, 47 F.3d 716, 732-33 (5th Cir. 1995) (en banc) (discussing common law invasion of privacy).

[96] [19] Likewise, the Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), held that damage to one's reputation by a state actor does not violate a liberty or property interest "apart from some more tangible interests such as employment." Id. at 701. The collection and dissemination of information under the Washington law does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property.

[97] In sum, Russell's and Stearns's privacy claims are fatally defective as a matter of law, and must fail.

VII.

[98] [20] Russell and Stearns make a final argument based on the Due Process Clause. They claim that because the Washington statute violates their privacy rights, it deprives them of a liberty interest without giving them notice and an opportunity to be heard. Since we have already rejected their privacy claims, we conclude that they have no liberty interest at stake, and hence we reject their due process claims.

VIII.

[99] [21] As a matter of law, the Act does not violate the Ex Post Facto Clause, the right to privacy, or the Due Process Clause. Russell and Stearns therefore have no likelihood of success on the merits of their ex post facto, privacy, and due process claims, and they are not entitled to a preliminary injunction. The decision of the district court denying the motion for a preliminary injunction was not an abuse of discretion.

[100] AFFIRMED.

***** BEGIN FOOTNOTE(S) HERE *****

[101] *fn1 The legislature made several amendments to the Act in 1994, 1995, and 1996; "the Act" includes these amendments.

[102] These lawsuits were filed after the 1994 and 1995 amendments went into effect but before the effective date of the 1996 amendments. Because Russell and Stearns request only prospective relief, we construe the law as it exists today--including the 1996 amendments. Indeed, applying the 1996 amendments strengthens Russell's and Stearns' case because the amendments arguably increase the burdens of registration. See 1996 Wash. Laws, ch. 275, Section 11.

[103] *fn2 Those subject to notification include convicted sex offenders, persons found not guilty by reason of insanity of a sex offense, persons found incompetent to stand trial for a sex offense and subsequently committed, persons committed as a sexual psychopath, and persons committed as a sexually violent predator. Wash. Rev. Code Section 4.24.550(3).

[104] *fn3 We are bound by the Washington Supreme Court's interpretation of Washington law. Powell v. Ducharme, 998 F.2d 710, 713 (9th Cir. 1993); In re Kirkland, 915 F.2d 1236, 1241 (9th Cir. 1990). Whether the Act abridges rights protected by federal law, however, is a federal question.

[105] *fn4 The State of Washington argues that Russell and Stearns did not properly raise their due process and privacy arguments in the district court. Although there is no bright-line rule to determine when a matter has been properly raised, a "workable standard" is that the argument must be raised "sufficiently for the trial court to rule on it. " In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989).

[106] We need not decide whether these issues were waived, however, because we have discretion to hear arguments not raised in the district court "if the issue `is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.' " A-1 Ambulance Service, Inc. v. County of Monterey, 90 F.3d 333, 339 (9th Cir. 1996) (quoting Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985)). We exercise our discretion to entertain these claims because they are purely issues of law.

[107] *fn5 See also Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937 (1994) (whether tax on illegal marijuana violated Double Jeopardy Clause); United States v. Austin, 509 U.S. 602, 113 S. Ct. 2801 (1993) (whether Excessive Fines Clause applied to in rem civil forfeiture proceedings); United States v. Halper, 490 U.S. 435 (1989) (whether civil penalty is punishment under Double Jeopardy Clause). In Ursery, the Supreme Court cautioned that these three cases have been confined to the specific contexts in which they were decided, Ursery, 116 S. Ct. at 2147; United States v. McClinton, 98 F.3d 1199, 1202 (9th Cir. 1996); see United States v. Sardone, 94 F.3d 1233, 1235-36 (9th Cir. 1996), and hence we will not dwell on them.

[108] Prior to Ursery, the Third Circuit formulated a test for punishment under the Ex Post Facto Clause in Artway v. Attorney General of New Jersey, 81 F.3d 1235 (3rd Cir. 1996) based largely on the Halper-AustinKurth Ranch trio of cases. Artway involved an ex post facto challenge to New Jersey's "Megan's Law", which provided for registration and community notification for certain convicted sex offenders. Because the Supreme Court in Ursery has cast doubt on the application of Halper, Austin, and Kurth Ranch in this context, we decline to adopt Artway's test for punishment.

[109] *fn6 We are mindful that Ursery was a Double Jeopardy case, and that it warned against lifting a test for punishment from one constitutional provision and applying it to another. Ursery, 116 S. Ct. at 2146. In Hendricks, however, the Court used the same test for the Double Jeopardy and Ex Post Facto Clauses, Hendricks, 117 S. Ct. at 2081-86, leading us to conclude that the test for punishment is the same for both clauses.

[110] *fn7 Whether a particular sanction, or class of sanctions, has historically been considered punishment does not properly belong in an analysis of the intent of the legislature. Ursery discussed the history of the sanction at issue, but only in the context of the sanction's effects. See Ursery, 116 S. Ct. at 2149.

[111] *fn8 "His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the `authority immediately in charge of his surveillance,' and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by the continuity, and deprive of essential liberty." Weems, 217 U.S. at 366.

[112] *fn9 The Third Circuit similarly found that the "dissemination of information beyond law enforcement personnel is reasonably related to the non-punitive goals of Megan's Law." E. B. v. Verniero, Nos. 96-5132, 96-5416, 1997 WL 473107, at *21 (3rd Cir. Aug. 20, 1997).

[113] *fn10 The State of Washington and the United States argue that the harsh results of notification come not as a direct result of the government action, but as a societal consequence of the offender's crime. Moreover, a state has no general duty to protect individuals against potential harm by third parties, DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 197 (1989), unless the state creates the danger and removes the individual's ability to protect himself, see Wood v. Ostrander, 879 F.2d 583, 588-90 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990). We need not address these arguments.

[114] *fn11 In reaching this conclusion, we disagree with Doe v. Gregoire, 960 F.Supp. 1478, 1486-87 (W.D. Wash. 1997), to the extent it holds the notification provisions of the Act to be unconstitutional. That decision was rendered after Lynce but before Hendricks; it interpreted Lynce as abandoning the Ursery "intent-effects" test, and therefore it did not apply the "intent-effects" test in the manner we have outlined. As we explain above, and as Hendricks confirms, the Ursery test survives, notwithstanding Lynce.

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]


19970904


124 F.3d 1079, 97 Cal. Daily Op. Serv. 7137, 1997.C09.1471

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E. B. v. FN, 119 F.3d 1077 (3d Cir. 08/20/1997)



[Editor's note: footnotes (if any) trail the opinion]

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

[2] Filed August 20, 1997

[3] NOS. 96-5132 and 96-5416

[4] E. B., (A Fictitious Name)

v.

[5] PETER VERNIERO*fn*, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CHARLES R. BUCKLEY, ACTING BERGEN COUNTY PROSECUTOR; JAMES MOSLEY, CHIEF OF POLICE OF THE CITY OF ENGLEWOOD, NEW JERSEY Peter Verniero*fn*, Attorney General Of The State Of New Jersey Appellant in No. 96-5132

[6] W. P., et al., Individually and as Representatives of a Class pursuant to Fed. R. Civ. P. 23 (a) and 23 (b) (2)

v.

[7] PETER VERNIERO*fn*, Attorney General of New Jersey; JEFFREY S. BLITZ, Atlantic County Prosecutor; CHARLES R. BUCKLEY, Acting Bergen County Prosecutor; STEPHEN G. RAYMOND, Burlington County Prosecutor; JOSEPH F. AUDINO, Acting Camden County Prosecutor; STEPHEN D. MOORE, Cape May County Prosecutor; NEIL S. COOPER, Acting Cumberland County Prosecutor; CLIFFORD J. MINOR, Essex County Prosecutor; HARRIS Y. COTTON, Gloucester County Prosecutor; CARMEN MESSANO, Hudson County Prosecutor; SHARON B. RANSAVAGE, Hunterdon County Prosecutor; MARYANN K. BIELAMOWICZ, Mercer County Prosecutor; ROBERT W. GLUCK, Middlesex County Prosecutor; JOHN KAYE, Monmouth County Prosecutor; W. MICHAEL MURPHY, JR., Morris County Prosecutor; DANIEL J. CARLUCCIO, Ocean County Prosecutor; RONALD S. FAVA, Passaic County Prosecutor; RONALD A. EPSTEIN, Salem County Prosecutor; MELAINE B. CAMPBELL, Acting Somerset County Prosecutor; DENNIS O'LEARY, Sussex County Prosecutor; EDWARD NEAFSEY, Acting Union County Prosecutor; JOHN J. O'REILLY, Warren County Prosecutor, W.P., et al., Individually and as Representatives of a Class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), Appellants in No. 96-5416

[8] On Appeal From the United States District Court For the District of New Jersey

[9] (D.C. Civil Action Nos. 96-cv-00130; 95-cv-00098 and 96-cv-00097)

[10] Argued October 21, 1996

[11] BEFORE: BECKER, STAPLETON and NYGAARD, Circuit Judges

[12] (Opinion Filed August 20, 1997)

[13] Joseph L. Yannotti (Argued)
Rhonda S. Berliner-Gold
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellant
Attorney General of New Jersey
No. 96-5132

[14] Judith A. Eisenberg
Office of County Prosecutor
Bergen County
10 Main Street
Justice Center
Hackensack, NJ 07601
Attorney for Appellee
Charles R. Buckley, Acting
Bergen County Prosecutor
No. 96-5132

[15] Gerald R. Salerno (Argued)
Aronsohn & Weiner
263 Main Street
Hackensack, NJ 07601
Attorney for Appellee
E.B. (A Fictitious Name)
No. 96-5132

[16] John J. Gibbons
Lawrence S. Lustberg
James E. Ryan (Argued)
Crummy, Del Deo, Dolan,
Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102-5497
and
Michael Z. Buncher
Office of Public Defender
Division of Mental Health Advocacy
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellants
W.P., et al., Individually and as
Representatives of a Class
Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2)
No. 96-5416

[17] Jane D. Plaisted
Office of County Prosecutor
Essex County
50 West Market Street
Essex County Courts Bldg.
Newark, NJ 07102
Attorney for Appellees Blitz,
Buckley, Raymond, Audino, Moore,
Cooper, Minor, Cotton, Messano,
Ransavage, Bielamowicz, Gluck,
Kaye, Murphy, Carluccio, Fava,
Epstein, Campbell, O'Leary,
Neafsey, and O'Reilly
No. 96-5416

[18] Thomas E. Bracken
Office of County Prosecutor
Sussex County
19-21 High Street
Newton, NJ 07860
Attorney for Appellee
Dennis O'Leary
No. 96-5416

[19] Peter Verniero (Argued)
Joseph L. Yannotti
Office of Attorney General of
New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Attorneys for Appellee
Peter Verniero
Attorney General of New Jersey
No. 96-5416

[20] Ronald K. Chen (Argued)
Rutgers Constitutional Litigation Clinic
Rutgers University School of Law
15 Washington Street
Newark, NJ 07102
Attorney for Amicus Curiae
ACLU-NJ
No. 96-5416

[21] Faith S. Hochberg (Argued)
Office of United States Attorney
970 Broad Street, Room 502
Newark, NJ 07102
and
Leonard Schaitman
Wendy M. Keats
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Attorneys for Amicus Curiae
United States of America
No. 96-5416

[22] Geoffrey S. Berman
Latham & Watkins
885 Third Avenue
New York, NY 10022-4802
Attorney for Amici M. Kanka,
R. Kanka, D. Zimmer, R.
Cunningham, N. Deal, J. Dunn, T.
Fowler, T. Manton, S. Molinari, J.
Saxton and C. Smith
No. 96-5416

[23] OPINION OF THE COURT

[24] STAPLETON, Circuit Judge:

[25] I. INTRODUCTION

[26] On July 29, 1994, Megan Kanka, a seven year old child, was abducted, raped, and murdered near her home. The man who confessed to Megan's murder lived in a house across the street from the Kanka family and had twice been convicted of sex offenses involving young girls. Megan, her parents, local police, and the members of the community were unaware of the accused murderer's history; nor did they know that he shared his house with two other men who had been convicted of sex offenses.

[27] By October 31, 1994, New Jersey had enacted the Registration and Community Notification Laws, Pub. L. 1994, Chs. 128, 133 (codified at N.J.S.A. 2C:7-1 to 7-11) as part of a ten-bill package collectively referred to as "Megan's Law." This legislation required registration by those who had committed certain designated crimes involving sexual assault and provided for the dissemination of information about those required to register. Other states followed suit with their own versions of Megan's Law and Congress passed a statute requiring a state program of registration and notification as a condition of receiving certain federal funds. By May of 1996, forty-nine states had adopted sex offender registration laws and thirty-two states maintained some form of community notification program.

[28] We have before us challenges to the constitutionality of the notification requirements of New Jersey's Megan's Law based on the Ex Post Facto, Double Jeopardy, and Due Process Clauses of the United States Constitution. The issues before us are difficult but relatively narrow. We are not called upon to decide whether Megan's Law can constitutionally be applied to one who has committed one of the designated sex crimes after its enactment, where the application of the law follows a fair hearing in connection with the sentencing for that offense. Nor, of course, is it our responsibility to determine whether the policy judgments reflected in Megan's Law are prudent ones.

[29] We hold that (1) the notification requirements of Megan's Law do not constitute state inflicted "punishment" on Tier 2 and Tier 3 registrants for purposes of the Ex Post Facto and Double Jeopardy Clauses; (2) the Due Process Clause of the United States Constitution forecloses New Jersey from placing the burden of persuasion on the registrant in a proceeding challenging a Tier 2 or Tier 3 classification and notification plan; and (3) the Due Process Clause requires the state at such a proceeding to shoulder the burden of justifying the classification and notification plan by clear and convincing evidence.

[30] II. THE MEGAN'S LAW SCHEME

A.

[31] Public reaction to Megan's murder was intense, and New Jersey's governor and legislature responded quickly. By August 15, 1994, two weeks after the discovery of Megan's body, bills providing for registration and community notification had been introduced in the General Assembly. Two weeks later, the General Assembly declared the bills an "emergency," allowing them to bypass committee and be passed the same day.

[32] In the Senate, no registration or notification bills had been introduced as of August 29, 1994. However, the Law and Public Safety Committee held a hearing upon pending legislation that pre-dated Megan's Law and would have required victim notification on the release of offenders. In connection with its consideration of that legislation, the Committee received testimony and/or written reports from, inter alia, the American Civil Liberties Union, municipal officials, inmates, state and federal legislators, and the Attorney General on issues related to sex offender registration and community notification. Registration and community notification bills identical to their General Assembly counterparts were introduced in the Senate on September 12, 1994. After hearing testimony from the ACLU, the New Jersey Coalition of Crime Victims, and corrections officials on September 26, 1994, the Senate Law and Public Safety Committee revised the bills by: (1) supplementing the list of crimes which require registration,*fn1 (2) directing the Attorney General to consult with a twelve-member Advisory Council of experts to establish guidelines concerning the risk of reoffense, (3) identifying certain factors material to the determination of risk of reoffense, and (4) narrowing the scope of community notification. The Committee then favorably reported the amended versions to the Senate, see Senate Law & Pub. Safety Comm., Statement to Substitute for Senate Bill No. 14 & Assembly Bill No. 85 (N.J. Sept. 26, 1994), which approved the bills on October 3. The General Assembly followed suit by debating and approving the revised bill on October 20, 1994, and Governor Whitman signed it into law on October 31, 1994.

B.

[33] Megan's Law establishes both a registration requirement and a three-tiered notification program. See Artway v. Attorney General, 81 F.3d 1235, 1243 (3d Cir. 1996). The registration provisions were the subject of this court's decision in Artway, where we upheld their constitutionality in the face of ex post facto, double jeopardy, bill of attainder, due process, equal protection, and vagueness challenges. We there summarized the operation of the registration provision:

[34] The registration provision requires all persons who complete a sentence for certain designated crimes involving sexual assault after Megan's Law was enacted to register with local law enforcement. N.J.S.A. 2C:7-2b(1). Those committing these offenses and completing all incarceration, probation, and parole before the Law's enactment must register only if, at the time of sentencing, their conduct was found to be "characterized by a pattern of repetitive and compulsive behavior." Id.

[35] The registrant must provide the following information to the chief law enforcement officer of the municipality in which he resides: name, social security number, age, race, sex, date of birth, height, weight, hair and eye color, address of legal residence, address of any current temporary legal residence, and date and place of employment. N.J.S.A. 2C:7-4b(1). He must confirm his address every ninety days, notify the municipal law enforcement agency if he moves, and re-register with the law enforcement agency of any new municipality. N.J.S.A. 2C:7-2d to e.

[36] The registration agency then forwards the registrant's information, as well as any additional information it may have, to the prosecutor of the county that prosecuted the registrant. N.J.S.A. 2C:7-4c to d. The prosecutor, in turn, forwards the information to the Division of State Police, which incorporates it into a central registry and notifies the prosecutor of the county in which the registrant plans to reside. Id. This information is available to law enforcement agencies of New Jersey, other states, and the United States. N.J.S.A. 2C:7-5. The registration information is not open to public inspection.... Failure of the sex offender to comply with registration is a fourth-degree crime. [N.J.S.A. 2C:7-2a.]

[37] 81 F.3d at 1243. The registration requirement persists for a period of 15 years from the date of conviction or the date of release from a correctional facility, whichever is later. It is only after this 15 year period that a registrant may make application to the Superior Court to terminate the obligation to register. The obligation may be terminated only upon a persuasive showing that the registrant is not likely to pose a threat to the safety of others. N.J.S.A. 2C:7-2f.

C.

[38] The registration information provides a basis for the next step--notification. The prosecutor of the county where the sex offender intends to reside and the prosecutor from the county of conviction use the registration information and other data to jointly assess the risk of reoffense by the registered individual. N.J.S.A. 2C:7-8d(1). They determine whether the sex offender poses a low (Tier 1), moderate (Tier 2), or high (Tier 3) reoffense risk. N.J.S.A. 2C:7-8c. Every registrant at least qualifies for Tier 1 treatment, otherwise known as "law enforcement alert," where notification extends only to law enforcement agencies likely to encounter the registrant. N.J.S.A. 2C:7-8c(1). In the case of those registrants posing a moderate risk of reoffense, Tier 2 notification, or "law enforcement, school and community organization alert," issues to registered schools, day care centers, summer camps, and other community organizations which care for children or provide support to women and where individuals are likely to encounter the sex offender. N.J.S.A. 2C:7-8c(2). The high risk registrants merit Tier 3's "community notification," where members of the public likely to encounter the registrant are notified. N.J.S.A. 2C:7-8c(3).

[39] In order to preserve uniformity in the tier classification and notification process, the state Attorney General, in consultation with an advisory council, is required to develop and promulgate guidelines to be consulted by prosecutors in assessing the degree of risk of reoffense. N.J.S.A. 2C:7-8a, d. By statute, the guidelines are required to include the following considerations:

[40] (1) Conditions of release that minimize risk of re-offense, including but not limited to whether the offender is under supervision of probation or parole; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision;

[41] (2) Physical conditions that minimize risk of re-offense, including but not limited to advanced age or debilitating illness;

[42] (3) Criminal history factors indicative of high risk of re-offense, including:

[43] (a) Whether the offender's conduct was found to be characterized by repetitive and compulsive behavior;

[44] (b) Whether the offender served the maximum term;

[45] (c) Whether the offender committed the sex offense against a child;

[46] (4) Other criminal history factors to be considered in determining risk, including:

[47] (a) The relationship between the offender and the victim;

[48] (b) Whether the offense involved the use of a weapon, violence, or infliction of serious bodily injury;

[49] (c) The number, date and nature of prior offenses;

[50] (5) Whether psychological or psychiatric profiles indicate a risk of recidivism;

[51] (6) The offender's response to treatment;

[52] (7) Recent behavior, including behavior while confined or while under supervision in the community as well as behavior in the community following service of sentence; and

[53] (8) Recent threats against persons or expressions of intent to commit additional crimes.

[54] N.J.S.A. 2C:7-8b.

[55] Pursuant to this statutory delegation of authority, the Attorney General has developed guidelines for law enforcement for classification and notification. See Guidelines for Law Enforcement for Notification to Local Officials and/or the Community of the Entry of a Sex Offender into the Community, June 1, 1996 ("Guidelines"). The Attorney General's Guidelines require the prosecutors to use the Registrant Risk Assessment Scale (the "Scale"), a numerical scoring system designed with the assistance of mental health and law enforcement professionals, to evaluate the degree of risk of the sex offender. See Registrant Risk Assessment Scale Manual, Oct. 3, 1995 ("Manual"). The New Jersey Supreme Court has said of the creation of the Scale:

[56] A Committee of mental health professionals and legal experts ... developed the Scale. They examined risk assessment scales being used in the United States and Canada. After reviewing the scientific literature, the Committee selected for inclusion in the Scale those factors that met two conditions. First, all of the factors selected had to be empirically supported in the risk assessment field as criteria positively related to the risk of re-offense. Second, all of the factors selected had to be fairly concrete criteria that could be gathered in a consistent and reliable manner.

[57] In re C.A., 679 A.2d 1153, 1169 (N.J. 1996).

[58] The Scale itself is a matrix with thirteen factors grouped into four general categories: (1) Seriousness of Offense; (2) Offense History; (3) Characteristics of Offender; and (4) Community Support. See Artway, 81 F.3d at 1244.*fn2 Guided by the promulgated examples and commentary, the prosecutors determine whether the registrant poses a low, moderate, or high risk to the community under each of the factors and assign zero, one, or three points, respectively, for each factor. Then the prosecutors multiply these raw scores by a coefficient, reflective of the relative weight attributed to the various general categories by the creators of the Scale; raw scores for factors under Seriousness of Offense are multiplied by five, under Offense History by three, under Characteristics of Offender by two, and under Community Support by one. Prosecutors total the resulting amounts and place the registrant in the appropriate tier: Tier 1, low risk--0 to 36 points; Tier 2, moderate risk--37 to 73 points; and Tier 3, high risk--74 to 111 points. Finally, the prosecutors consider the applicability of two exceptions:

[59] 1) If an offender has indicated that he will reoffend if released into the community and the available record reveals credible evidence to support this finding, then the offender will be deemed to be a high risk of reoffense regardless of the weighting procedure; and 2) if the offender demonstrates a physical condition that minimizes the risk of reoffense, including but not limited to advanced age or debilitating illness, then the offender will be deemed to be a low risk of reoffense regardless of the outcome of the weighting procedure.

[60] Manual at 1; see Artway, 81 F.3d at 1244.

[61] While the class of those who receive notification differs depending on a registrant's classification, the type of information distributed is the same regardless of the classification. The package of information provided includes the registrant's name, a recent photograph, a physical description, the offense of conviction, home address, place of employment or schooling, and a vehicle description and license plate number. "Those notified under Tier 2 are informed that the information is not to be shared with the general public, and every notification must contain a warning about the criminal consequences of vandalism, threats and assaults against the registrant or any of his associates." 81 F.3d at 1244.*fn3

D.

[62] The New Jersey courts have played an active role in refining and developing the Megan's Law scheme. See In re G.B., 685 A.2d 1252 (N.J. 1996); In re C.A., 679 A.2d 1153 (N.J. 1996); Doe v. Poritz, 662 A.2d 367 (N.J. 1995). In Doe, the New Jersey Supreme Court upheld the constitutionality of Megan's Law and read into the statute and Guidelines certain additional procedures designed to prevent any "excessiveness of community notification." 662 A.2d at 381. First, the Court added the "likely to encounter" the registrant restriction to Tier 2 notification. Id.*fn4 As a result of the Doe decision, a prosecutor who has classified a registrant in Tier 2 must make an "individual determination" concerning the appropriate institutions and organizations to include in the notification program he creates. Id. As articulated in the Guidelines, "[t]he decision as to which groups should appropriately be notified should be made on a case-by-case basis, following careful review." Guidelines at 11. There is no "automatic inclusion of an organization simply because it is `registered' "with the local law enforcement agencies; rather, "likely to encounter" requires "having a fair chance to encounter" the registrant. Doe, 662 A.2d at 385. The Guidelines interpret the Court's articulations to mean that the types of interactions which occur at the location and their attendant circumstances must demonstrate that contact with the offender is "reasonably certain." Guidelines at 6-7. They provide, for example, that if a registrant regularly stops at a gas station merely to refuel, there would not be a "fair chance to encounter" him there. Id. at 7.

[63] Ordinarily, the "critical" factor for " `likely to encounter' is geography--how close is the institution or organization, in the case of Tier Two notification, to the offender's residence or place of work or school." Doe, 662 A.2d at 385. However, the New Jersey Supreme Court explained:

[64] In some municipalities, not every institution or organization that would otherwise qualify for notification may be close enough to warrant same, but in some cases, ... institutions or organizations in other municipalities may be close enough. The same observations can be made for Tier Three notification. We do not attempt to define the area around the offender's residence or place of work or school that may be included within the notification process, and assume it may differ from one locale to another. Depending upon the particular offender, factors other than geography may be considered if they are relevant to the offender's likely whereabouts, such as an offender's proclivity for certain locations, and geographic considerations may be affected by the nature of the offender's characteristics and the institution in question, e.g., a repetitive and compulsive pedophile and a large elementary school.

[65] Id. at 385-86.

[66] Moreover, the Guidelines provide that notification must be appropriately tailored to reach those members of the public who are at risk from the particular offender. The tailoring must include consideration of the relationship between the registrant and his prior victims. As the Guidelines suggest, sex offenders who have only victimized members of their own households may not pose a threat to most members of the community, and those that have targeted adult women may be of little risk to children; thus, the prosecutor may appropriately limit notification as all registered community organizations are not "likely to encounter" the offenders in either example.

[67] Doe also added to the Megan's Law scheme a requirement that the prosecutor provide the registrant with notice of a Tier 2 or Tier 3 classification and the proposed notification plan. Id. at 382. The Court insisted that the written notice describe the manner and details of the notification plan and inform the registrant of his rights to retain counsel and to challenge the prosecutor's decisions. However, the Court "realize[d] that in some cases it may be impossible as a practical matter to give such notice, or to give it timely, and in those cases it may be dispensed with." Id. The Guidelines elaborate on dispensing with the notice requirement:

[68] [I]f a Prosecutor['s] Office does not receive notification of release of a person determined to be a Tier 3 offender until after the date of release, then, in order to protect the public, notice to the offender may be dispensed with. The Prosecutor's Office may apply to the designated judge for an order allowing notification to take place without service of notice to the offender, upon receipt of the judge's order. This may occur, for example, when an offender who has been civilly committed is released on short notice by a judge.

[69] Also, cases will arise where registrants will avoid service of the notice. In those cases, the Prosecutor's Office may apply to the designated judge for an order allowing notification to take place without service of notice to the offender, where the Prosecutor can demonstrate that every good faith effort was made within the allotted timeframe to serve the registrant. If service has not been completed within 3 days of the date that the tier decision is made, then the Prosecutor may apply to the court for the order allowing notification to occur without notice to the registrant.

[70] Guidelines at 17-18.

[71] Finally, Doe required the state to make available a pre-notification judicial review process for sex offenders who wish to contest their classification or the notification plan. 662 A.2d at 382. The registrant bears the burden of persuasion in these summary, in camera proceedings, where the court decides only whether to affirm or reverse the prosecutor's determination. Thus, where the state has met its burden of presenting evidence that "prima facie justifies the proposed level and manner of notification," the court will affirm the prosecutor's determination "unless it is persuaded by a preponderance of the evidence that it does not conform to the laws and Guidelines." Id. at 383. The "only issue for the court on the Tier level of notification is the risk of reoffense;" review of the notification plan largely involves interpretation and application of the "mandatory" limits on notification, such as the "likely to encounter" standard, articulated in the Doe opinion. Id. at 383-84. Still, the courts are to understand that "the Scale is merely a tool," In re G.B., 685 A.2d at 1261, and they are cautioned not to "blindly follow the numerical calculations" but to make a "case-by-case" determination regarding tier classification and scope of notification. In re C.A., 679 A.2d at 1171-72.

[72] The New Jersey Supreme Court has recognized that"a registrant is entitled to lodge three distinct challenges to his tier designation":

[73] First, a registrant may introduce evidence that the calculation that led to the Scale score was incorrectly performed either because of a factual error, because the registrant disputes a prior offense, because the variable factors were improperly determined, or for similar reasons. Second, a registrant may introduce evidence at the hearing that the Scale calculations do not properly encapsulate his specific case; or phrased differently, a registrant may maintain that his case falls outside the "heartland" of cases and, therefore, that he deserves to be placed in a tier other than that called for by the prosecutor's Scale score. Finally, a registrant may introduce evidence that the extent of notification called for by his tier categorization is excessive because of unique aspects of his case. Challenges to the Scale itself, or challenges to the weight afforded to any of the individual factors that comprise the Scale, are not permitted. Instead, all challenges must relate to the characteristics of the individual registrant and the shortcomings of the Scale in his particular case.

[74] In re G.B., 685 A.2d at 1264.

[75] The registrant's hearing "is civil, not criminal, and remedial, not adversarial." In re C.A., 679 A.2d at 1164. It follows the "format . . . for probation violation hearings" in New Jersey. Id. at 1166. The court possesses broad discretion over whether and to what extent witnesses and cross examination will be allowed. Doe, 662 A.2d at 382-83. Rules of evidence do not apply, and the court may rely on documentary evidence, such as expert opinions, for all issues. Id. at 383. Reliable hearsay is admissible. In re C.A., 679 A.2d at 1165. Moreover, "non-conviction offenses [i.e., criminal activities that have not been the subject of a conviction] are to be considered in evaluating a registrant's risk of re-offense, provided there is sufficient evidence that the offense occurred." Id. at 1162.

[76] Where the proof, whether in the form of reliable hearsay, affidavits, or offers of live testimony, creates a genuine issue of material fact that the tier designation or manner of notification is inappropriate, "then the trial court should convene a fact-finding hearing and permit live testimony." Id. at 1166. Both sides may use expert testimony, but the proceedings are not to be converted into "long drawn-out contests between experts." Doe, 662 A.2d at 384. Thus, courts must permit registrants to introduce expert testimony which tends to establish that the Scale does not properly account for aspects of the registrant's character or prior offense, where those aspects are relevant and material to the tier classification, and, in the court's opinion, would assist in the disposition of the case. In re G.B., 685 A.2d at 1265-66.

E.

[77] In Artway, we sustained the constitutionality of the provisions of Megan's Law requiring registration and Tier 1 notification. We declined, however, to address the accompanying constitutional challenge to the provisions requiring the broader notification authorized for Tier 2 and Tier 3 classifications. We found that challenge unripe in large part because the plaintiff there had not been classified and had not received a notification plan. We also noted that the record there lacked evidence of the effects of notification on the community. 81 F.3d at 1250. For purposes of the ensuing discussion, we will follow the convention established in our Artway opinion, whereby"registration" includes Tier 1 notification and "notification" refers to Tier 2 and Tier 3 notification. Artway, 81 F.3d at 1244.

[78] III. THE PRIOR PROCEEDINGS

[79] We have two actions before us: E.B. v. Verniero and W.P. v. Verniero. They involve identical challenges to Megan's Law; each alleges that notification violates ex post facto, double jeopardy, and procedural due process protections conferred by the United States Constitution. The plaintiffs in both actions are sex offenders who were convicted of their offenses prior to the enactment of Megan's Law. The plaintiff in the individual action, E.B., comes within the broad language defining the class certified in W.P., constituting:

[80] All persons required to register as a sex offender[sic] pursuant to N.J.S.A. 2C:7-1 et seq. and whose offenses were committed prior to October 31, 1994, the effective date of the New Jersey Registration and Community Notification Laws, and who have been or will be classified as a tier II or tier III offender.

[81] W.P. v. Poritz, 931 F. Supp. 1187, 1192 (D.N.J. 1996). The defendants in E.B. are the Attorney General, the local county prosecutor, and the police chief, while in W.P. they are the Attorney General and various county prosecutors.

A.

[82] In 1974, E.B. pled guilty in New Jersey Superior Court to three offenses of sexual abuse against young boys and received a thirty-three-year sentence. Two years later, he pled guilty in the Circuit Court in Petersburg, Virginia, to two separate murders and was sentenced to concurrent terms of twenty years of incarceration in that state to run consecutive to the New Jersey sentence. In 1979, after serving less than six years of his thirty-three-year New Jersey sentence, E.B. was paroled and extradited to Virginia to serve the murder sentences. On June 15, 1989, E.B. was paroled by Virginia. He is now free, subject to supervised release by the New Jersey Bureau of Parole until July 23, 2006.

[83] Pursuant to Megan's law, E.B. registered with the authorities in Englewood, New Jersey. On October 24, 1995, the Bergen County Prosecutor's Office notified E.B. that he was classified as a Tier 3 sex offender and proposed to issue notification to "all public and private educational institutions and organizations within a one-half mile radius of the Plaintiff 's home, and all parties who resided or worked within a one block radius of the Plaintiff 's home." E.B. Complaint at Para(s) 13. Upon E.B.'s objection to the classification and notification, a hearing was held in New Jersey Superior Court, Law Division. On December 18, 1995, the court ruled that the classification was appropriate and permitted notification to: (1) 82 public and private educational institutions, licensed day care centers and summer camps in Englewood, Teaneck, Bergenfield, Tenafly, Englewood Cliffs, Leonia and Fort Lee, and (2) all residences within a one block radius of E.B.'s house. E.B.'s appeals to the Appellate Division and the State Supreme Court were unsuccessful, but notification remained stayed by court order during the pendency of the proceedings.

[84] E.B. then filed his federal action. The district court entered a preliminary injunction, enjoining the defendants from implementing notification. E.B. v. Poritz, 914 F. Supp. 85 (D.N.J. 1996). Defendants appeal from that order and a subsequent order denying their application for a stay of the preliminary injunction.

B.

[85] Seven plaintiffs filed the initial complaint in W.P. in January 1996. Two months later, when the court certified the class, there were 22 representative plaintiffs, all classified as either Tier 2 or Tier 3 and facing prosecutor's notification plans ranging in scope from notification of three schools to notification of all schools, day care centers, and registered community organizations in the city of Trenton, as well as all residents within a certain area of the city. Some of the representative plaintiffs had sought relief from a state court and were subject to the resulting state court orders. The district court promptly entered a preliminary injunction preventing notification for any of the class members. W.P. v. Poritz, 931 F. Supp. at 1187.*fn5

[86] Thereafter, the court entered summary judgment for the defendants. W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996). Plaintiffs filed this appeal from the entry of summary judgment.

C.

[87] The record in these cases contains affidavits from registrants and state authorities, the Attorney General's publications concerning the Scale, registration and notification data, newspaper articles, and reports from other jurisdictions maintaining notification programs. The district court held the plaintiffs' constitutional claims were ripe for review, and no one has challenged that determination on appeal.

[88] New Jersey's Administrative Office of the Courts reports that, as of May 6, 1996, there were 528 registrants designated as Tier 1; 585 as Tier 2; and 59 as Tier 3; or 45 percent, 50 percent, and 5 percent, respectively, of all classified registrants. According to the county prosecutors, as of May 16, 1996, notification was completed for 135 out of the 644 individuals classified to Tier 2 or Tier 3. Administrative Office information also indicates that of the 117 registrants who pursued their notification challenges to a resolution, 62 had their tier levels affirmed. Fifty-two challenges resulted in changed tier classifications and 13 resulted in modification of the scope of notification.

[89] The record contains anecdotal evidence concerning the experiences of a total of at least nineteen sex offenders in New Jersey.*fn6 In only six of these cases had state-compelled notification under Megan's Law been carried out. In the remaining cases, members of the community had received information about the sex offenders from sources other than a Megan's Law notification.*fn7 In all the cases, the sentenced offender had experienced adverse repercussions. Loss of employment, eviction, and verbal abuse were not uncommon. Vandalism and threats were experienced but considerably less frequently. Two registrant affidavits speak of physical assaults following notification. One registrant reported being physically attacked on three separate occasions. In another case, a father and son broke into the registrant's residence and assaulted a house guest whom they mistook for the sex offender. Police arrived on the scene and arrested the assailants, who were later prosecuted and convicted for criminal trespass.

[90] According to law enforcement records, the 135 cases in which Tier 2 and Tier 3 notifications have been completed have produced only a single instance of a physical assault being reported to the authorities--the father and son attack on the person mistaken for a registrant. In addition, there was a total of four reports to law enforcement personnel of threats, harassment, or other offensive actions. In Bergen County, one Tier 3 registrant contacted the local police department and reported that his mother's car had been vandalized. In Somerset County, a juvenile who registered under Megan's Law reported to police that a harassing note had been left on his car at school. In Sussex County, the prosecutor's office received a call from the wife of a Tier 3 registrant who reported that a threatening note had been mailed to the registrant's home. In Atlantic County, a Tier 2 registrant's employer reported that the local school had disclosed the employment of the registrant and a boycott was planned for the employer's restaurant. The police defused the situation by contacting the potential picketers and the school's principal, who agreed to speak to his staff concerning the confidentiality of information received through notification.

[91] The record also includes information from the registration and notification experiences of other jurisdictions. A review of community notification in Washington state found that of the 176 notifications completed between March 1990 and March 1993, 14 incidents of harassment were reported, ranging in severity from multiple incidents of verbal abuse to a death threat and one assault.*fn8

[92] In addition, the record contains a January 1995 study by the Oregon Department of Corrections, undertaken to investigate the impact of the first 14 months of the state's 1993 community notification statute. Even before this statute, probation and parole officers with a sex offender under supervision had provided notification to"local police; immediate and extended family members in contact with the offender; victims; other residents in the offender's home; regular visitors to the home; employers; therapists; Children's Services Division; landlords and apartment managers; ministers, pastors, and other officials where the offender attends church; select neighbors; specific business[es] frequented by the offender; and close associates to the offender." Oregon Dep't of Corrections, Sex Offender Community Notification in Oregon at 7 (Jan. 1995). This practice continued after enactment of the statute requiring notification to "a broader public." As of the time of the study, there had been 237 notification plans submitted under the new law. In this context, the Oregon Department of Corrections reported as follows:

[93] In January 1995, forty-five parole/probation sex offender specialists from thirty-five counties responded to a survey of their experience with Community Notification. These officers were responsible for a total caseload of 2,160 sex offenders. The following information was gained from the surveys and [Sex Offender Supervision] Network discussions:

* * *

[94] Less than 10% of offenders experienced some form of harassment. Incidents reported included name calling, graffiti, toilet papering and minor property vandalism, monitoring of a home by video camera, repeated reports of unfounded violations to parole/ probation officers, and picketing of residences.

[95] There were two extreme cases of retaliation. One sex offender had a gun pointed at him and was threatened. In another case, a victim had tires slashed and the offender was blamed. Although the offender passed a polygraph and was accountable for the time, there were threats made that the offender's home would be burned down.

* * *

[96] Other circumstances reported by parole/probation officers included:

[97] Community notification has made it more difficult to find residences for some sex offenders released from prison.

* * *

[98] Notification has [affected] employment opportunities for sex offenders.

* * *

[99] Businesses who were initially willing quietly to employ a sex offender sometimes do not provide jobs when the hiring will clearly become public.

[100] Id. at 12-14.

[101] IV. THE ROOKER-FELDMAN ISSUE

[102] There is a threshold jurisdictional issue for decision. The appellants contend that the district court was without subject matter jurisdiction under the doctrine articulated by the Supreme Court in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Section 1257 of Title 28 of the United States Code bestows upon the Supreme Court of the United States appellate jurisdiction to review final judgments of the highest courts of the respective states. The so-called Rooker-Feldman doctrine teaches that, by negative implication, the inferior federal courts lack subject matter jurisdiction to review judgments of those courts. We have interpreted the doctrine to encompass final decisions of lower state courts as well. See Port Auth. Police Benevolent Ass'n, Inc. v. Port Auth. of N.Y. & N.J., 973 F.2d 169, 177-78 (3d Cir. 1992).

[103] Appellants point out that E.B. demanded and received judicial review of the prosecutor's Tier 3 classification and notification plan and that he advanced federal constitutional arguments in that proceeding for preventing the classification and notification plan from being put into effect. See Tr. Megan's Law Hearing (N.J. Super. Ct. Law Div. Dec. 7, 1995) at 6-9. The Superior Court, Law Division, after a hearing, rejected E.B.'s challenge and ordered that notification be given. E.B. appealed to the Appellate

[104] Division, which affirmed. The Supreme Court of New Jersey thereafter denied E.B.'s petition for certification of appeal. As appellants stress, the relief E.B. seeks in this proceeding is an injunction directing that the notification ordered by the New Jersey Superior Court, Law Division, not be carried out.

[105] We agree with appellants that this is a paradigm situation in which Rooker-Feldman precludes a federal district court from proceeding. To grant E.B. relief would require an inferior federal court to determine that the New Jersey court's judgment was erroneous and would foreclose implementation of that judgment. See FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996).

[106] The district court reached a contrary conclusion because it believed that although E.B. raised constitutional issues, he "was denied an opportunity to meaningfully raise constitutional challenges to Megan's Law." 914 F. Supp. at 89 (emphasis supplied). Its belief was based primarily on the fact that the Supreme Court of New Jersey in Doe had described a Megan's Law proceeding in the trial court as a "summary proceeding" and had stated that "the only issue for the court on the Tier level of notification is the risk of reoffense." Id. at 89-90; Doe, 662 A.2d at 382-83. This suggested to the district court that the New Jersey courts do not consider constitutional challenges in a Megan's Law proceeding. 914 F. Supp. at 90.

[107] If we shared the belief of the district court that E.B.'s constitutional challenges were not considered by the New Jersey courts--and, under Doe, could not be considered by them--we would also conclude that Rooker-Feldman did not deprive the district court of jurisdiction. However, we do not read the Doe opinion as instructing New Jersey courts to ignore properly raised claims based on the federal Constitution,*fn9 and it is clear that the New Jersey courts do not so read that opinion. In In re G.B., 669 A.2d 303, 306 (N.J. Super. Ct. App. Div. 1996), aff'd, 685 A.2d at 1252, the Appellate Division considered constitutional challenges and rejected them on the merits because these same issues had been previously considered and rejected in Doe. Shortly thereafter, the Superior and Supreme Courts of New Jersey, in appeals from a denial of relief in a Megan's Law proceeding, addressed constitutional challenges to Megan's Law for which there was no binding precedent. See In re C.A., 679 A.2d at 1153. Even if there were not this clear evidence, however, we would have to "assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary." Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 15 (1987).

[108] The only remaining issue with respect to E.B. and the Rooker-Feldman doctrine is whether a litigant can be said to have a meaningful opportunity to raise an issue in a state proceeding when the highest court of that state has rejected, in another litigant's case, the same argument the litigant wishes to raise. Our answer is in the affirmative.

[109] Rooker-Feldman abstention is necessary to preserve the United States Supreme Court's appellate jurisdiction--as well as to limit federal court review of state court decisions to the avenue provided for such by Congress. See Ernst v. Child and Youth Services of Chester County, 108 F.3d 486, 491 (3d Cir. 1997). The federal court structure established by Congress intends that only the Supreme Court have the opportunity to decide that a state court has reached an erroneous conclusion on a federal constitutional claim. Nothing suggests that this structure should be altered where the state court's decision is based upon what is already settled precedent in that state.

[110] As we have previously observed, the interests served by Rooker-Feldman are quite similar to those served by giving a state court judgment res judicata effect in a subsequent federal proceeding. Marks v. Stinson, 19 F.3d 873, 885-86 n.11 (3d Cir. 1994); Valenti v. Mitchell, 962 F.2d 288, 297 (3d Cir. 1992). If a litigant resorts to a state court and suffers an adverse judgment, a lower federal court must respect that judgment unless and until it is overturned. The litigant's only remedy is by way of appeal through the state court system and by way of petition to the Supreme Court of the United States thereafter.*fn10

[111] We will, accordingly, reverse the judgment of the district court in E.B.'s case*fn11 and remand with instructions to dismiss for want of subject matter jurisdiction.

[112] This does not mean, however, that the district court lacked jurisdiction over the class claims in W.P . As we concluded in Valenti, 962 F.2d at 298, " Rooker-Feldman does not bar individual constitutional claims by persons not parties to earlier state court litigation." In W.P., at least some of the representative plaintiffs were not the subject of any kind of judicial order when they filed this suit to secure injunctive relief against enforcement of Megan's Law. Indeed, neither they nor the state had petitioned any state court for any relief. The claims of these class plaintiffs were sufficient to confer subject matter jurisdiction*fn12 on the district court.*fn13

[113] V. THE EX POST FACTO AND DOUBLE JEOPARDY ISSUES

[114] The Ex Post Facto Clause forecloses retroactive application of a law that "inflicts a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). The Double Jeopardy Clause forbids "multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440 (1989). Accordingly, neither clause is implicated unless the state has inflicted "punishment." Since no one here suggests that "punishment" has a different meaning under one of these clauses than under the other, the critical issue to which we now turn is whether the notification called for in situations involving Tier 2 and Tier 3 registrants is "punishment" for purposes of the Ex Post Facto and Double Jeopardy Clauses.

[115] A. The Artway Standard

[116] In Artway, when we addressed the issue of whether registration under Megan's Law constituted "punishment," we found no Supreme Court precedent addressing a similar statutory provision. In order to "divine" a"test for punishment," we reviewed the Supreme Court case law and looked for common considerations. 81 F.3d at 1254-63. Recognizing "that the appropriate `punishment' analysis depends on the context," we derived an "analytical framework for this case." Id. at 1261, 1263. Specifically, we concluded that a "measure must pass a three-prong analysis--(1) actual purpose, (2) objective purpose, and (3) effect--to constitute non-punishment." Id. at 1263.

[117] Under this Artway analysis, we first look to whether the adverse effect on individuals results from a desire on the part of the legislature to punish past conduct or is a by-product of a bona fide legislative effort to remedy a perceived societal problem. "If the legislature intended Megan's Law to be `punishment,' i.e. retribution was one of its actual purposes, then it must fail constitutional scrutiny. If, on the other hand, `the restriction of the individual comes about as a relevant incident to a regulation,' the measure will pass this first prong." Id. (quoting De Veau v. Braisted, 363 U.S. 144, 160 (1960).

[118] The second inquiry--into "objective purpose"--focuses on the operation of the legislative measure and on whether analogous measures have traditionally been regarded in our society as punishment. In Artway, we suggested that there were three aspects of "objective purpose" that should be considered by a court before deciding whether the party challenging the statute has carried its burden of showing that an objective observer in our society would perceive the measure as punitive. Id. It is important to consider the measure's proportionality--whether the remedial purpose of a legislative measure purporting to be non-punitive can explain all the adverse effects on those involved. While it is true that "even remedial sanctions carry the sting of punishment," id. at 1260 (internal quotation marks omitted), only if the sting is not "reasonably related" to the remedial goal would an objective observer be justified in perceiving a punitive purpose, id. at 1265. It is also important to consider history. If analogous measures have traditionally been regarded by our society as "serv[ing] punitive purposes" and the text and the legislative history do "not make [the legislature's] plausible remedial purposes clear," id. at 1257, there is an objective basis for regarding the measure as punishment. Finally, we noted in Artway that some measures are intended to have a mixed salutary and deterrent effect. The examples we gave were taxes on illegal activities (like possession of drugs) and on activities that the state concededly wished to discourage. See id. at 1259. Such mixed measures will not be deemed to have an objectively punitive purpose despite their deterrent purpose unless that deterrent purpose is an unnecessary complement to the measure's salutary operation, the measure is operating in an unusual manner inconsistent with its historically mixed purposes, or the deterrent purpose overwhelms the salutary purpose. See id. at 1263.

[119] "The final prong [of the Artway analysis] examines whether the effects--or `sting'--of a measure is so harsh `as a matter of degree' that it constitutes `punishment.' " Id. at 1266 (citing California Dep't of Corrections v. Morales, 514 U.S. 499, 509 (1995)). This prong necessarily involves difficult line-drawing. Unfortunately, the Supreme Court case law provides only a few fixed points. We know that, under certain circumstances, the "sting" of incarceration or forfeiture of one's citizenship is sufficiently extraordinary to require a finding of punishment, see Miller v. Florida, 482 U.S. 423 (1987); Trop v. Dulles, 356 U.S. 86 (1958), and we have recently been told that civil commitment of violent sex offenders does not, see Kansas v. Hendricks, ___ U.S. ___, 117 S. Ct. 2072 (1997).

[120] B. The Impact Of Ursery And Hendricks

[121] There are two recent Supreme Court cases which potentially bear upon our decision: United States v. Ursery, 116 S. Ct. 2135 (1996), and Kansas v. Hendricks, ___ U.S. ___, 117 S. Ct. at 2072. Appellees insist that after Ursery and Hendricks, Artway does not provide an appropriate standard for determining whether Megan's Law notification constitutes "punishment" for purposes of the Ex Post Facto and Double Jeopardy Clauses. We disagree.

[122] In Ursery, the Supreme Court held that "civil forfeitures . . . do not constitute `punishment' for purposes of the Double Jeopardy Clause" even when the value of the property forfeited is arguably excessive when compared to the harm suffered by the government from the conduct giving rise to the forfeiture. 116 S. Ct. at 2138. The Court first emphasized that its case law had sharply distinguished between in rem forfeiture proceedings and in personam civil fine proceedings. It explained that in the latter "it is the wrongdoer in person who is proceeded against . . . and punished" while in the former "it is the property which is proceeded against, and by resort to a legal fiction, held guilty and condemned." Id. at 2145 (quoting from Various Items of Personal Property v. United States, 282 U.S. 577, 580-81 (1931)). Thus, civil forfeitures are not "criminal punishments because they [do] not impose a second in personam penalty for the criminal defendant's wrongdoing." Id. at 2141. Second, the Court noted, "[c]ivil forfeitures, in contrast to civil penalties, are designed to do more than simply compensate the Government. Forfeitures . . . are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct. [For this reason,] it is virtually impossible to quantify, even approximately, the nonpunitive purposes served by a particular civil forfeiture." Id. at 2145. Accordingly, while a court can determine whether a civil fine has a punitive component by comparing its size to the harm experienced by the government, a court is not in a position "to determine whether a particular forfeiture bears no rational relationship to the nonpunitive purposes of that forfeiture." Id.

[123] The holding of Ursery is a narrow one limited to civil forfeitures. Neither of the principal rationales supporting its conclusion is pertinent here and we find nothing in the Court's reasoning that is inconsistent with the Artway standard.*fn14 It necessarily follows that Ursery provides no justification for abandoning that standard. See Third Circuit Internal Operating Procedures 9.1.

[124] After the district court's decision in these cases, the Supreme Court decided Kansas v. Hendricks, 117 S. Ct. at 2072. The Court there upheld a Kansas statute that provides for the civil commitment of "sexually violent predators." See Kan. Stat. Ann. Section(s) 59-29a01 et seq. Under the statute, a person convicted or charged with a violent sexual offense and suffering from a "mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence," Section(s) 59-29a02(a), may be confined to state custody for "control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large," Section(s) 59-29a07(a). Prior to Leroy Hendricks' scheduled release from prison, the state invoked the statute to have him confined as a sexual predator. Hendricks, who had an extensive history of molesting children, challenged the act on substantive due process, ex post facto, and double jeopardy grounds. The Supreme Court rejected all three claims and held that the state's involuntary commitment program did not constitute punishment for the purpose of ex post facto or double jeopardy.

[125] Like Ursery, Hendricks does not establish "a single `formula' " for identifying which legislative measures constitute punishment and which do not. Morales, 514 U.S. at 509. However, the context involved in Hendricks--civil commitment of sex offenders--is, obviously, more closely related to the context involved here than was the context of Ursery. In determining the continuing viability of Artway, therefore, we must give careful consideration to how Hendricks addressed the question of whether civil commitment is punishment. We find substantial overlap between the factors relied on in Hendricks and those that comprise the Artway test and we discern no need to abandon (or overhaul) Artway.

[126] The Court's analysis in Hendricks begins by inquiring into "the legislature's stated intent," 117 S. Ct. at 2082, just as Artway directs that we begin with the legislature's actual purpose. The Court found Kansas' placement of the challenged provision in the probate code instead of the criminal code, and the legislature's description of its creation as a "civil commitment procedure," to be evidence of the legislature's "disavow[ing] any punitive intent." Id. at 2082, 2085. "Nothing on the face of the statute suggest[ed] that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm." Id. at 2082.

[127] Hendricks then goes beyond the legislature's stated intent to consider additional factors, including those factors Artway incorporates into its objective purpose prong. Like Artway's inquiry into proportionality, Hendricks repeatedly describes how the Kansas statute is tailored to achieve its remedial purpose of protecting the public. The Court observes that prior criminal conduct is appropriately examined for the narrow evidentiary purpose of predicting dangerousness. See id. The Court also notes that Kansas "limited confinement to a small segment of particularly dangerous individuals," id. at 2085, and that those affected individuals do not "remain confined any longer than [they] suffer[] from a mental abnormality rendering [them] unable to control [their] dangerousness," id. at 2083. As the Court recognizes, "[f]ar from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others." Id. Finally, the Court observes that the individuals are subject only to the conditions placed on any involuntarily committed person in a state mental institution and not to the "more restrictive conditions" placed on state prisoners. Id. at 2082.

[128] Hendricks, like Artway, relied heavily on history. In the Court's view, the confinement involved is "one classic example" in a long history of measures restricting the freedom of the dangerously mentally ill--legislative initiatives which have been consistently held to be nonpunitive. Id. at 2083. The Court specifically analogized the Kansas confinement to the quarantines of those afflicted with highly contagious diseases, and recognized that it has "never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others." Id. at 2084.

[129] There is also support in Hendricks for Artway's inquiry into the relationship between a "mixed" measure's salutary and deterrent purposes. Hendricks discusses the multiple purposes of the Kansas statute, including incapacitation of dangerous sex offenders as well as their treatment, and concludes that the statute would not constitute punishment even if providing treatment were merely an "ancillary purpose"--and not the "primary" purpose--for passing the statute. Id. This is consistent with Artway's allowance that a measure can be non-punitive even when it does not have solely "salutary" purposes such as treatment.

[130] Though Hendricks does not explicitly discuss what Artway calls the "effects prong," we find nothing in Hendricks inconsistent with Artway's direction to examine what the challenged measure actually does to the affected individuals. This is not to say, of course, that Hendricks lacks implications for the application of the effects prong. The Court held that potentially indefinite civil commitment of dangerous sex predators is not punishment. This provides a new and important "fixed point" that is of great utility in determining on which side of the punitive/nonpunitive line to place community notification.

[131] Although Hendricks thus does not suggest to us that any of the considerations identified as relevant in Artway are no longer relevant to a challenge based on the Ex Post Facto and Double Jeopardy Clauses, we do discern a teaching in Hendricks that we do not discern in the Supreme Court case law preceding Artway. In the course of holding that Kansas' Sexually Violent Predator Act "does not impose punishment," id. at 2086, the Hendricks Court made the following cogent observation regarding the deference that must be accorded to the legislature's judgment as to whether its action is remedial:

[132] Although we recognize that a "civil label is not always dispositive," Allen [v. Illinois, 478 U.S. 364, 369 (1986)], we will reject the legislature's manifest intent only where a party challenging the statute provides "the clearest proof " that "the statutory scheme[is] so punitive either in purpose or effect as to negate[the State's] intention" to deem it "civil." United States v. Ward, 448 U.S. 242, 248-249, 100 S. Ct. 2636, 2641, 65 L.Ed.2d 742 (1980).

[133] Id. at 2082.

[134] As we pointed out in Artway, the Supreme Court had previously required this degree of deference only in cases where the issue before it was "whether a proceeding is effectively criminal so that the procedural protections of the Fifth and Sixth Amendments must apply" in that proceeding. Artway, 81 F.3d at 1262 n.26. After Hendricks, however, it seems clear that similar deference to the legislative judgment is required whenever legislative measures are challenged on the basis of the Ex Post Facto and Double Jeopardy Clauses.*fn15 While the Hendricks Court did characterize Hendricks' claim at one point as an "argument . . . that the Act establishes criminal proceedings," 117 S. Ct. at 2081, the issue before the Court was whether the Act imposed "punishment" for purposes of the Ex Post Facto and Double Jeopardy Clauses, and the Court's holding was that the Act did not.

[135] Accordingly, in Artway terms, if we determine that the actual legislative purpose was remedial, we must sustain Megan's Law against the current challenges unless its objective purpose or its effect are sufficiently punitive to overcome a presumption favoring the legislative judgment.

[136] C. Legislative Purpose

[137] As we have indicated, in Artway we addressed only whether Tier 1 registrants under Megan's Law are subjected to punishment--that is, whether being required to register, and having the resulting disclosures available to law enforcement personnel, constitute punishment. In that context, we determined "whether the legislature's actual purpose [when enacting Megan's Law] was to punish." Artway, 81 F.3d at 1264. Looking to the statute's own statement of purpose*fn16 and the scant legislative history,*fn17 we found that the legislative purpose of Megan's Law was to identify potential recidivists and alert the public when necessary for the public safety, and to help prevent and promptly resolve incidents involving sexual abuse and missing persons. We then noted that "[p]rotecting the public and preventing crimes are the types of purposes [the Supreme Court has] found `regulatory' and not punitive." Id.; see also De Veau, 363 U.S. at 160. We therefore concluded that the restrictive provisions of Megan's Law passed the "actual purpose" test.

[138] Since in Artway we were only dealing with a challenge to registration, we were not required to definitively resolve the legal question of the actual purpose of notification.*fn18 However, the record evidence of legislative intent is exactly the same for both registration and notification. Nothing has been called to our attention that causes us to change the conclusion we reached in Artway regarding this evidence. While the appellants view the context in which Megan's Law was enacted as indicative of a punitive intent, wefind it entirely consistent with its declared remedial purpose. Accordingly, we have no basis for questioning the legislature's declared purpose, which is remedial and devoid of any indication of an intent to punish. We must give substantial deference to that judgment.

[139] D. Objective Purpose

[140] In Artway, we concluded that registration and Tier 1 notification of law enforcement personnel was fully explained by the nonpunitive, legislative purpose. We explained:

[141] Here, the solely remedial purpose of helping law enforcement agencies keep tabs on these offenders fully explains requiring certain sex offenders to register. Registration may allow officers to prevent future crimes by intervening in dangerous situations. . . . [T]he registrant may face some unpleasantness from having to register and update his registration[, b]ut the remedial purpose of knowing the whereabouts of sex offenders fully explains the registration provision . . . . And the means chosen--registration and law enforcement notification only--is not excessive in any way. Registration, therefore, is certainly "reasonably related" to a legitimate goal: allowing law enforcement to stay vigilant against possible re-abuse.

[142] 81 F.3d at 1265.

[143] The issue now before us is whether the provisions of Megan's Law that call for dissemination of information about registrants beyond law enforcement personnel are also fully explained by the nonpunitive, legislative purpose. In addressing this issue, there is a lesson in the above-quoted portion of Artway that we must keep in mind. The relevant issue is whether these provisions are " `reasonably related' to a legitimate goal." Nothing in Artway or the Supreme Court cases upon which it relies requires a perfect fit between end and means. Nor does anything in Ursery or Hendricks. An absence of remedial, objective purpose is not demonstrated by pointing out that the legislature did not address what might be perceived as another aspect of the same problem or that there may be a means of serving the legislative end that would be more effective than the means chosen. If a reasonable legislator motivated solely by the declared remedial goals could have believed the means chosen were justified by those goals, then an objective observer would have no basis for perceiving a punitive purpose in the adoption of those means.

[144] We conclude that the Tier 2 and 3 dissemination of information beyond law enforcement personnel is reasonably related to the nonpunitive goals of Megan's Law. As we have already indicated, these goals include identifying potential recidivists, notifying those who are likely to interact with such recidivists to the extent necessary to protect public safety, and helping prevent future incidents of sexual abuse. The fundamental premise of Megan's Law is that registration and carefully tailored notification can enable law enforcement and those likely to encounter a sex offender to be aware of a potential danger and "to stay vigilant against possible re-abuse." Id. This is not an unreasonable premise.

[145] Moreover, these goals have not been pursued in a way that has imposed a burden on registrants that clearly exceeds the burden inherent in accomplishment of the goals. The statutory scheme is a measured response to the identified problem that does not subject all registrants to dissemination of information beyond law enforcement personnel. The Guidelines call for a risk assessment based on objective criteria, all of which might reasonably be perceived as relevant to the degree of risk presented by each registrant. This risk assessment is utilized to determine the maximum scope of the notification concerning the registrant. In the case of Tier 1 registrants, who comprise over 45% of those required to register, dissemination is limited to law enforcement personnel. In the case of the moderate risk registrants in Tier 2, who comprise 50% of those evaluated, dissemination is limited to those in the community who have responsibility for, or provide support to, those who are most likely to be victimized if the registrant recidivates. Even with respect to the 5% of registrants determined to pose higher risk, there is no unlimited public dissemination. Under the Guidelines, information is disseminated only to those who are "reasonably certain" to encounter the registrant.

[146] Appellants nevertheless insist that the remedial goal of Megan's Law does not fully justify the means selected. First, they point to the fact that risk assessment under the Guidelines is based primarily on the registrant's past behavior. Past criminal conduct is the basis for 90 of the possible 111 points in the Registrant Risk Assessment Scale. Id. at 1266 n.30. According to appellants, this Scale fails to take sufficient account of treatment or other positive changes in a registrant's life. They conclude that"the reach of this law will necessarily be excessive, encompassing those who do not actually pose a genuine risk of re-offense." Appellants' Br. at 41. However, the non-existence of a perfect predictor of recidivism should not preclude legislative resort to a rationally based instrument of risk assessment, developed and validated by mental health professionals. The most appellants have done is to suggest that a more effective predictor might be devised; that is not enough to make the objective purpose of the predictor adopted a punitive one.*fn19

[147] Appellants further suggest that the information disseminated is often excessive in light of the stated remedial aims. The information disseminated with respect to a Tier 2 or Tier 3 registrant includes his or her name, description, recent photograph, address, place of employment or schooling, and a description of any vehicle used by him or her along with its license number. Appellants point out that some of this information will sometimes be unnecessary. "[F]or example, if the registrant works 20 or 30 miles from his home, the registrant's neighbor who receives notification is not `likely to encounter' the registrant at his place of employment. Likewise, those who live near the same registrant's place of employment are not `likely to encounter' the registrant at his home. Yet in both instances, notification includes the same information . . . ." Id.

[148] We are not persuaded. First, information that an offender does not spend all of his time in the vicinity, but does have a residence or a place of employment/school elsewhere, may indeed serve a remedial purpose in helping individuals know when it is that they are "likely to encounter" the offender. Moreover, even if this were not so, a decision not to expend the resources necessary to tailor each notice to the circumstances of the person receiving notice is hardly inconsistent with good faith pursuit of the declared remedial purposes.

[149] Having found a reasonable "fit" between end and means, we turn to historical precedent. To appellants, the dissemination of information beyond law enforcement personnel is closely analogous to the well-recognized historical punishments of public shaming, humiliation and banishment as those practices were employed in colonial times. We rejected a very similar argument in United States v. Criden, 648 F.2d 814 (3d Cir. 1981). There, the district court had denied the media the right to copy, for rebroadcast, video and audio tapes admitted into evidence and played to the jury during a criminal trial. In support of its decision to foreclose post-trial dissemination of public record information to the public, the district court made the following observation:

[150] The greater and more widespread the publicity about a particular criminal case, the more likely it is that penalties not prescribed by the law will be visited upon the accused and, more importantly, upon innocent relatives and friends. . . .

[151] Given the nature of our society these side effects are inevitable; indeed, it can be argued that they form an important, if unofficial, part of the sanctions imposed by society upon lawbreakers. The unfortunate fact is, however, that these side effects are not uniformly visited upon persons accused of violating the law. And, since they are not an official part of the criminal justice process, and are beyond the reach of that process, there is probably no acceptable way of ensuring uniformity of application.

[152] Id. at 824 (quoting United States v. Criden, 501 F. Supp. 854, 860 (E.D. Pa. 1980)). In pursuing this theme, the district court likened the proposed rebroadcast to placing the defendant in public stocks.

[153] We rejected the tendered analogy:

[154] Nor can we accept the [district] court's strained analogy of rebroadcast to "parading a convicted defendant through the streets, or holding him up to public ridicule by exhibiting him in a cage or in the stocks." 501 F. Supp. at 860.

[155] Id. at 825. Nor can we accept the suggested analogy between notification's re-publication of information publicly available at the time of a sex offender's trial and the holding of a convicted defendant up to public ridicule. Public shaming, humiliation and banishment all involve more than the dissemination of information. State dissemination of information about a crime and its perpetrators was unnecessary in colonial times because all in the colonial settlement would have knowledge of these matters. Rather, these colonial practices inflicted punishment because they either physically held the person up before his or her fellow citizens for shaming or physically removed him or her from the community.

[156] The "sting" of Megan's Law for Tier 2 and 3 registrants results not from their being publicly displayed for ridicule and shaming but rather from the dissemination of accurate public record information about their past criminal activities and a risk assessment by responsible public agencies based on that information. This distinction makes a substantial difference when one looks for the relevant historical understanding of our society. Dissemination of information about criminal activity has always held the potential for substantial negative consequences for those involved in that activity. Dissemination of such information in and of itself, however, has never been regarded as punishment when done in furtherance of a legitimate governmental interest.

[157] When there is probable cause to believe that someone has committed a crime, our law has always insisted on public indictment, public trial, and public imposition of sentence, all of which necessarily entail public dissemination of information about the alleged activities of the accused. As this court has explained, we insist upon this public dissemination for a number of reasons: It "heightens public respect for the judicial process," it "permits the public to . . . serve as a check upon the judicial process," and it "plays an important role in the . . . free discussion of governmental affairs." Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984) (internal quotation marks omitted). Wholly independent of the criminal sanctions that conviction may entail, the consequences of our law requiring this public dissemination of information can be severe. In every case, a conviction becomes a matter of public record, and in many cases that conviction may receive widespread media attention. Depending upon the crime and the circumstances, information disseminated as a result of our insistence on public prosecution may be the source of a wide range of adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism and/or vigilante retribution. Employment may be lost, and the opportunity for future employment may be dramatically reduced. It may take a lifetime of effort on the part of a convicted defendant to restore previously existing relationships with those with whom he deals personally, and restoration of his reputation among others may never occur. Nevertheless, our laws' insistence that information regarding criminal proceedings be publicly disseminated is not intended as punishment and has never been regarded as such.

[158] We believe the required dissemination of information generated by our criminal justice system and the subsequent dissemination of "rap sheet" information to regulatory agencies, bar associations, prospective employers and interested members of the public*fn20 constitute far more compelling analogies than the stocks, cages, and scarlet letters referenced by appellants.*fn21

[159] We also agree with appellees that various forms of state warnings about threats to public safety provide more apt analogies to Tier 2 and Tier 3 notification than the referenced colonial practices. In order to provide members of the public with an opportunity to take steps to protect themselves, the government has traditionally published appropriate warnings about a range of public hazards. Posters warning that a pictured individual is abroad in the community and to be regarded as armed and dangerous come most readily to mind. But there are others as well. The state has traditionally, for example, posted quarantine notices when public health is endangered by individuals with infectious diseases. Cf. Hendricks, 117 S. Ct. at 2084 ("A State could hardly be seen as furthering a`punitive' purpose by [isolating] persons inflicted with a[] highly contagious disease.").*fn22 Significantly, these warnings communicate not only facts about past events but also the fact that a public agency has found a significant future risk based on those events.

[160] Whenever these state notices are directed to a risk posed by individuals in the community, those individuals can expect to experience embarrassment and isolation. Nevertheless, it is generally recognized that the state has a right to issue such warnings and the negative effects are not regarded as punishment. Because the closest analogies have not historically been regarded as punishment, we conclude that historical precedent does not demonstrate an objective punitive purpose.

[161] Finally, we turn to the third consideration involved in assessing objective purpose. That consideration, as we understand it, is a savings provision--that is, even if the remedial purpose of a measure cannot fairly be said to justify all of its aspects, it will nevertheless be found non-punitive if measures of this type, like taxes, have traditionally served both remedial and deterrent purposes and the particular measure before the court serves such purposes in a manner consistent with its analogous antecedents. Having concluded that the remedial purpose of Megan's Law justifies all of its aspects, it necessarily follows in this case, as it did in Artway, 81 F.3d at 1266, that this third consideration does not counsel in favor of a finding that it is punitive.

[162] E. Effects

[163] As we have indicated, we hypothesized in Artway that "a law [could] constitute unconstitutional `punishment' because of its effects" even where no actual or objective punitive purpose is shown. 81 F.3d at 1260. We explained:

[164] [An] examination of effects, like the Austin [v. United States, 509 U.S. 602 (1993),] inquiry into history, is necessary to limit what would otherwise be the untenable results of the De Veau subjective purpose inquiry and the Halper means-end calculus. While even a substantial "sting" will not render a measure "punishment," . . . at some level the "sting" will be so sharp that it can only be considered punishment regardless of the legislators' subjective thoughts.

[165] Id. at 1261.

[166] It is clear from Artway, however, that for the effects of a measure to render it "punishment," those effects must be extremely onerous. Even deprivation of one's livelihood is not sufficiently onerous. Flemming v. Nestor, 363 U.S. 603 (1960) (termination of social security benefits); Hawker v. New York, 170 U.S. 189 (1898) (revocation of license to practice one's profession). Moreover, while Artway's third prong serves as an independent hurdle that a legislative measure must surmount, when it is applied, the burden imposed must still be evaluated in the light of the importance of any legitimate governmental interest served. The only examples the case law suggests of effects sufficiently onerous are deprivation of one's United States citizenship that leaves one a "stateless person" and a complete deprivation of personal freedom (i.e., incarceration). Even these deprivations are not per se punishment, however. While in some circumstances making one a "stateless person" is punishment, denaturalization as a remedy for citizenship fraudulently obtained is regarded not as punishment but as a necessary part of regulating naturalization of aliens. See Trop, 356 U.S. at 98. Even incarceration is not always punishment. Pre-trial detention and post-sentence civil commitment of dangerous offenders have both been expressly found to be non-punitive measures when justified by important state interests. See United States v. Salerno, 481 U.S. 739 (1987); Hendricks, 117 S. Ct. at 2072.

[167] The direct effects of Megan's Law clearly do not rise to the level of extremely onerous burdens that sting so severely as to compel a conclusion of punishment. All Megan's Law mandates is registration and notification. Under Megan's Law, New Jersey has not deprived appellants of their freedom or their citizenship. The state has imposed no restrictions on a registrant's ability to live and work in a community, to move from place to place, to obtain a professional license or to secure governmental benefits.

[168] What concerns registrants, however, are the indirect effects: Actions that members of the community may take as a result of learning of the registrant's past, his potential danger, and his presence in the community. People interact with others based on the information they have about them. Knowing that someone is a convicted sex offender and has been evaluated as a continuing risk is likely to affect how most people treat that person.

[169] There can be no doubt that the indirect effects of Tier 2 and Tier 3 notification on the registrants involved and their families are harsh. 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 opportunities have been jeopardized or lost. Housing and housing opportunities have suffered a similar fate. Family and other personal relationships 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. It also must be noted that these indirect effects are not short-lived. While there are suggestions in the record that the circumstances of a registrant may stabilize as time passes after notification, the statute permits repeat notification over a period of many years.

[170] The primary sting from Megan's Law notification comes by way of injury to what is denoted in constitutional parlance as reputational interests. This includes the burdens of isolation, harassment, loss of opportunities, and the myriad of more subtle ways in which one is treated differently by virtue of being known as a potentially dangerous sex offender. The other type of indirect effect is exposure to an increased risk of private violence that can result in damage to one's property or injury to one's person. We will focus on each class of indirect effects in turn.

[171] Injury to reputation has traditionally been regarded in our society as a serious matter. Our law of defamation has from our earliest days protected reputation and provided compensation for wrongful injury to reputational interests. It has provided recourse, for example, for those whose reputations are injured by false allegations of criminal activity. At the same time, however, reputational interests have not been accorded the same level of protection in our society as interests that have been found "implicit in the concept of ordered liberty." Paul v. Davis, 424 U.S. 693, 713 (1976).

[172] In Paul v. Davis, law enforcement officials decided to alert local area merchants to possible shoplifters who might be operating during the Christmas season. They distributed a "flyer" to 800 merchants which contained the name and "mug shot" photo of individuals described as"Active Shoplifters." Davis, who had previously been arrested for-- but never convicted of--shoplifting was included.

[173] Davis brought a civil rights action against the law enforcement officials arguing that, by destroying his reputation in the community, they had violated his"right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." Id. at 712. Though acknowledging that the Constitution secures a right to personal privacy, the Supreme Court rejected the notion that Davis' interest in his reputation was sufficiently fundamental to come within that constitutional right. The Court observed:

[174] In Roe [v. Wade, 410 U.S. 113 (1973)], the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental" or "implicit in the concept of ordered liberty" as described in Palko v. Connecticut, 302 U.S. 319, 325 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection--matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States' power to substantively regulate conduct.

[175] Respondent's claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private," but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.

[176] Id. at 713.

[177] The indirect effects experienced by Tier 2 and Tier 3 registrants, while quite likely more profound than those complained of by Davis, are clearly of a similar nature. Just as Davis sought constitutional protection from the consequences of state disclosure of the fact of his shoplifting arrest and law enforcement's assessment that he was a continuing risk, so registrants seek protection from what may follow disclosure of facts related to their sex offense convictions and the resulting judgment of the state that they are a continuing risk. It follows that, just as the officers' publication of the official act of Davis' arrest did not violate any fundamental privacy right of Davis', neither does New Jersey's publication (through notification) of registrants' convictions and findings of dangerousness implicate any interest of fundamental constitutional magnitude. The reputational interests asserted by appellants are "very different" from matters relating to marriage, procreation, and child rearing, and are therefore "far afield" from what has been deemed "fundamental" by the Constitution.*fn23

[178] Hendricks, and the long line of cases on which it relies, counsels that bona fide remedial legislation may inflict very substantial individual hardship without implicating the Ex Post Facto and Double Jeopardy Clauses. It necessarily follows that some limit must be placed on the situations in which a measure's sting alone, despite its remedial purpose and effect, will constitute punishment under those clauses and that classification as punishment on the basis of sting alone must be reserved for cases involving deprivation of the interests most highly valued in our constitutional republic. "[F]reedom from physical restraint`has always been at the core of the liberty protected' " by the Constitution. Hendricks, 117 S. Ct. at 2079 (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Freedom of thought and expression and freedom from state interference with the privacy interests identified in Davis are similarly "implicit in our concept of ordered liberty." Davis, 424 U.S. at 713. Interests such as these are sufficiently fundamental to our constitutionally secured liberty that state interference with them can be justified only by the most important of state interests.*fn24 Davis establishes that reputational interests are not among these fundamental liberty interests.

[179] We believe the state's interest protecting the public here is similar to, and as compelling as, the state interest served by the civil commitment statute in Hendricks. Accordingly, based on Hendricks, we believe that the state's interest here would suffice to justify the deprivation even if a fundamental right of the registrant's were implicated. Given that something less than a fundamental interest is implicated, the impact of Megan's Law on the registrants' reputational interests is necessarily insufficient alone to constitute "punishment."

[180] We now turn to the second type of indirect effects arising from notification. As we earlier observed, the record bears evidence of retributive assaults on registrants by private individuals. There is also evidence of vandalism and other damage to property of registrants and their associates. As we have also noted, however, each notification is accompanied by a warning against misuse of the information conveyed and an assurance that any private violence will be prosecuted. This is thus not a situation in which the state has encouraged private violence. Nor is it a situation in which the state has in some way incapacitated a person from taking steps to protect himor herself against private violence or has deprived a citizen of the law enforcement protection accorded to others in the population generally. On the contrary, the state has taken affirmative steps to discourage private violence in response to notification, and is providing registrants with the law enforcement protection available to others.

[181] We agree with the district court that the risk of private violence stems primarily from a registrant's past criminal activity. The most that can be said about notification is that the state, by disseminating accurate information about a registrant's crime and its assessment of future risk, may materially extend the period during which the increased risk of private violence may exist. While the extension of that increased risk is understandably of concern to plaintiffs, they have not persuaded us that the magnitude of the risk is such as to require classification of its extension as punishment. Although the record reflects that personal injury and property damage from private violence has occurred, it also reflects that these occurrences are relatively rare. Of the 135 notifications completed in New Jersey for which there is record data, only two occasioned assaults or property damage deemed serious enough by the victim-registrant to warrant a report to law enforcement authorities. Even if we were prepared to broaden our consideration to include examples of physical harm to registrants not reported to police, this would increase the total number of record cases to just three. Our record with respect to Washington and Oregon also evidences that reported instances of personal injury or property damage are rare.*fn25

[182] As we view this matter, there is unfortunately a background risk of private violence that is necessarily assumed by everyone in our society. When one commits a reprehensible crime and is publicly prosecuted, that risk is undoubtedly augmented to a limited degree. The duration of that degree of augmented risk is likely to be extended by notification pursuant to Megan's Law and this is understandably a concern for registrants. Nevertheless, we believe the Supreme Court would not regard this indirect effect of Megan's Law as sufficiently burdensome to require classification of the law as punitive. Certainly, in terms of the impact on the everyday lives of registrants, the burden of this aspect of Megan's Law pales by comparison to the civil commitment of sex offenders sanctioned in Hendricks.

[183] F. Satisfaction Of The Artway Test

[184] Because Megan's Law satisfies each of the three elements of the Artway test, we hold that the notification required by Megan's Law does not constitute punishment for purposes of the Ex Post Facto and Double Jeopardy Clauses.

[185] VI. THE PROCEDURAL DUE PROCESS ISSUES

[186] A. Deprivation Of A Liberty Interest

[187] The Fourteenth Amendment of the United States Constitution provides that "no person shall be deprived of life, liberty, or property without due process of law." U.S. Const. Amend. XIV. Appellants insist that they have a liberty interest that entitles them to the protection of procedural due process under this provision. Appellees insist that there is no such interest.

[188] Liberty interests that trigger procedural due process may be created by state law or by the federal constitution itself. See Sandin v. Conner, ___ U.S. #6D6D 6D#, 115 S.Ct. 2293 (1995). We need not reach the issue of whether appellants have a liberty interest recognized by the federal constitution because we are satisfied that appellants have a liberty interest created by the New Jersey Constitution of which they cannot be deprived without being accorded the process due under the Fourteenth Amendment.

[189] If a state law requires that the freedom of a person on parole or probation cannot be taken away without cause, the state has created a liberty interest that cannot be taken away without the process due under the Fourteenth Amendment. See Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). Similarly here, we know from Doe that the New Jersey Constitution gives Tier 2 and Tier 3 registrants the right to be free from Tier 2 and Tier 3 notification absent a showing of an overriding state interest. The New Jersey Supreme Court there held not only that Tier 2 and Tier 3 registrants had a right to the procedural due process guaranteed by the New Jersey Constitution, but also that they had a substantive right under that Constitution to be free of the disclosures required by Megan's Law, absent a demonstration that such disclosures are required by a legitimate and substantial state interest.*fn26 As the court explained:

[190] With its declaration of the right to life, liberty, and the pursuit of happiness, Article I, Section(s) 1 of the New Jersey Constitution encompasses the right of privacy. . . . We have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 96, 609 A.2d 11 (1992) (citing In re Martin, 90 N.J. 295, 447 A.2d 1290 (1982)).

[191] In resolving conflicts between the government's need for information and the individual's right of confidentiality, this Court has adopted a balancing test similar to that adopted by the federal courts. Martin, supra, 90 N.J. at 318, 447 A.2d 1290. We concluded, in Martin, that " `even if the governmental purpose is legitimate and substantial . . . the invasion of the fundamental right of privacy must be minimized by utilizing the narrowest means which can be designed to achieve the public purpose.' " Ibid. (quoting Lehrhaupt v. Flynn, 140 N.J.Super. 250, 262, 264, 356 A.2d 35 (App.Div. 1976), aff'd o.b., 75 N.J. 459, 383 A.2d 428 (1978)). . . .

[192] 662 A.2d at 412.*fn27

[193] B. Standards For Determining The Process Due

[194] Having concluded that Tier 2 and Tier 3 registrants are entitled to due process under the Fourteenth Amendment of the federal Constitution, we turn to the issue of what process is due them. Appellants contend that two procedural protections are due that are absent from the Megan's Law scheme. They insist that due process requires both that the burden of persuasion at a Megan's Law hearing be on the state rather than the registrant, and that the state's burden at such a hearing be to demonstrate the propriety of the tier classification and the notification plan by clear and convincing evidence.*fn28

[195] Mathews v. Eldridge, 424 U.S. 319 (1976), provides the framework we must apply to analyze both the burden of persuasion claim--whether it is the state or the registrant who must persuade the court on the material points--and the standard of proof claim--whether, if the burden of persuasion is on the state, the state must prove its case by a preponderance or by clear and convincing evidence. As Mathews teaches:

[196] [D]ue process is flexible and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). .. . More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[197] Mathews, 424 U.S. at 334-35.

[198] The Supreme Court has twice applied the Mathews test in the specific context of a challenge to the preponderance of evidence standard of proof. Santosky v. Kramer, 455 U.S. 745 (1982), posed the issue of whether due process requires the state to prove its case in a termination of parental rights proceeding by clear and convincing evidence, rather than merely by a preponderance of evidence. Addington v. Texas, 441 U.S. 418 (1979), presented the issue of the state's burden in a civil commitment proceeding. In each instance, the Court, in addition to identifying the private and public interests at stake and evaluating the relative risk of error in the particular kinds of proceedings involved, addressed whether the standard employed "fairly allocates the risk of an erroneous factfinding between the[] parties." Santosky, 455 U.S. at 761. As the Santosky Court explained:

[199] Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.

[200] Id. at 755.

[201] In both Santosky and Addington, the Court held that due process required the state to carry the burden of persuasion by more than a preponderance of the evidence, since the preponderance standard requires litigants to "share the risk of error in roughly equal fashion." Addington, 441 U.S. at 423. Neither a person threatened with a termination of parental rights nor one standing in jeopardy of a civil commitment "should . . . be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Id. at 427.

[202] C. Allocation Of The Burden Of Persuasion

[203] We first address whether the Due Process clause permits New Jersey to allocate the burden of persuasion in a Megan's Law proceeding to the registrant. We begin, as Mathews directs, by identifying the private and public interests involved. The private interests that will be affected by the state's notification in Tier 2 and Tier 3 cases if the outcome of the hearing is in the state's favor are very substantial. Notification puts the registrant's livelihood, domestic tranquility, and personal relationships with all around him in grave jeopardy. This jeopardy will not only extend to virtually every aspect of the registrant's everyday life, it will also last at least 15 years. As the New Jersey Supreme Court recognized in Doe, a registrant thus has a compelling interest in an accurate and reasonable disposition of the issues before the court in a Megan's Law hearing.

[204] The state, on the other hand, has a compelling interest in protecting its citizens by giving prompt notification to potential victims and relevant caregivers with respect to registrants who are accurately determined to be Tier 2 or Tier 3 risks. New Jersey thus has a compelling interest in having an expedited, summary process. However, the state also has an interest in ensuring that its classification and notification system is both fair and accurate. Put conversely, the state has no substantial interest in notifying persons who will not come into contact with the registrant; nor has it any interest in notifying those who will come into contact with a registrant who has erroneously been identified as a moderate or high risk. Cf. Santosky, 455 U.S. at 766 (noting that even when the state seeks to terminate parental rights, it shares an interest with the parents in an accurate factfinding as to their fitness).

[205] Given the respective private and public interests at stake in a Megan's Law hearing, we conclude that the burden of persuasion must be placed on the state if, compared to proceedings in which that burden is on the registrant, the risk of error will be materially reduced without materially impairing the state's ability to secure a prompt determination and without imposing substantial new administrative burdens on the state.

[206] Our next step, then, is to identify the issues that are before the court in a Megan's Law hearing--a necessary predicate for assessing any potential reduction in the risk of error. When a challenge is mounted to a tier classification, the issues for resolution by the court are limited to: (1) whether the Scale has been accurately applied to the facts of the case in accordance with its terms; and (2) whether there is something extraordinary about the particular registrant's case that takes it out of the "heartland" of the cases within the scope of the tier that would otherwise be indicated. In re G.B., 685 A.2d at 1264. If the registrant challenges not just the tier classification but also the reasonableness of the prosecutor's notification plan, the court must also exercise a judgment about whether the scope of the proposed notification is appropriate to the risk presented by the particular registrant.

[207] Since the validity of the Scale as a risk assessor must be accepted by the court, resolution of the first issue primarily requires factfinding--albeit factfinding in a context that poses more than a normal risk of error, as we explain hereafter. Resolution of a registrant's contention that his case is outside the "heartland" or that the notification proposed is excessive, on the other hand, necessarily involves a subjective judgment by the court regarding the degree and nature of the risk posed by the particular registrant. Thus, in resolving these issues, the court is necessarily required to assess future dangerousness. While a state is clearly entitled to require a court to undertake such an assessment, it is an undertaking involving substantial uncertainty. See Randy K. Otto, On the Ability of Mental Health Professionals to "Predict Dangerousness": A Commentary on Interpretation of the "Dangerousness" Literature, 18 Law & Psychol. Rev. 43, 45, 62-63 (1994)(noting that researchers in the 1970s began compiling data showing that the presumption that professionals could predict violent behavior was incorrect, but also noting that recent data showed "some" predictive ability); American Psychiatric Association, Report of the American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 20 (1974)(concluding that "[n]either psychiatrists nor anyone else have demonstrated an ability to predict future violence or dangerousness").

[208] Resolution of factual issues made relevant by the Scale is of critical importance to the outcome at a Megan's Law hearing. These issues include the circumstances of the crime that has required registration as well as other criminal conduct in which the registrant has allegedly engaged. See, e.g., In re C.A., 679 A.2d at 1153. In every hearing, the court will be called upon to find facts relating to the circumstances of a sex offense of which the registrant has been convicted. Many of these facts will not have been determined by the trier of fact in the criminal proceeding. Since a prosecutor may also rely on conduct for which the registrant has not been convicted, the court will be called upon in some proceedings to determine the circumstances of sex offenses that have never been the subject of a criminal proceeding. Sex offenses are almost always committed in private. This means that potential witnesses with relevant knowledge of whether, and if so how, an alleged sex offense occurred are generally limited to the victim and the alleged offender. One can therefore confidently predict that there will frequently be issues of importance in Megan's Law hearings where the information available to the court will be limited to the victim's word against the word of the alleged offender.

[209] These issues must be resolved in a proceeding in which the rules of evidence do not apply. The prosecutor may base her case entirely on hearsay, if it shows indicia of reliability. Most importantly, these issues must be resolved in a proceeding in which the registrant cannot compel testimony from the victim without the approval of the court, and the court must follow the following admonition of the New Jersey Supreme Court:

[210] The trial courts should only seek to compel such testimony when there is a real need for the testimony that cannot be met in an alternative manner. We expect that only in the rarest of cases will a court compel the testimony of a victim. In those cases, we suggest that, when possible, the trial court itself conduct all questioning of the victim.

[211] In re C.A., 679 A.2d at 1166.

[212] Accurate factfinding is also made more difficult by the timetable on which the proceedings must be conducted. Because of the public interest in a prompt resolution of the issues posed in any such proceeding, the Supreme Court of New Jersey has ordered that the time from the date of notice to a registrant until the time of trial court decision on the tier classification should not exceed 40 to 45 days. See Supreme Court of New Jersey, Outline of Procedure for Hearings on Objections to Megan's Law Tier 2 and Tier 3 Classification and Manner of Notification Determinations Para(s) I. While clearly justified, this requirement does substantially constrict both sides in their preparations for the truth-seeking hearing process.

[213] Courts are human institutions and there is, of course, risk of error in every judicial proceeding. Given the nature of the issues typically presented in a Megan's Law hearing and the process established by New Jersey for resolving them, however, we believe the risk of error in such a hearing is substantially greater than that in a typical civil damage suit. We further conclude that, in this context, the allocation of the burden of persuasion is of critical importance and the assignment of that burden to the prosecutor will substantially reduce the risk of an erroneous outcome.

[214] When the court in a Megan's Law hearing simply cannot tell which of two conflicting accounts (regarding the use of force, perhaps) represents the historical truth, allocation of the burden of persuasion is likely to be outcome determinative. The same is true in those cases in which the trier of fact finds inconsistencies or implausible elements in the victim's account, but, at the same time, is inclined to discount the registrant's account because of his criminal history or the enormity of his stake in the outcome. In these cases, as well as others in which the trier of fact discounts the account of the registrant for similar reasons, requiring the prosecutor to affirmatively convince the court of the important facts can be expected to materially reduce the risk of error.

[215] Finally, we must consider whether an allocation of the burden of persuasion to the state would materially impair the state's ability to receive a prompt determination or would impose new administrative burdens on it. Under the current procedural scheme, the state has the burden of presenting a prima facie case. This means, of course, that the prosecutor is already required to marshal and tender evidence that, if believed, will establish the facts she relied upon. While allocation of the burden of persuasion to the state may motivate the prosecutor to utilize live testimony rather than affidavits where substantial credibility issues are anticipated, this would not appear to impose a substantial administrative burden. Moreover, we perceive no reason to predict that any possible increase in the utilization of live witnesses would materially impair the prosecutor's ability to meet her responsibility under New Jersey's 45 day timetable for Megan's Law determinations.

[216] Given (1) the interest of the registrant and the state in an accurate determination of the relevant issues of fact in a Megan's Law hearing, (2) the absence of a substantial economic or other burden to the state from allocating the burden of persuasion to it, and (3) our conclusion that such an allocation will materially reduce the risk of error in those cases in which the allocation of that burden plays a role, we hold that due process requires that the prosecutor shoulder the burden of persuading the court of the truth of the facts upon which she has relied.

[217] D. Extent Of The State's Evidentiary Burden

[218] The remaining issue is whether due process requires that the prosecutor prove her facts by clear and convincing evidence, as appellants claim, rather than merely by a preponderance of evidence. Santosky and Addington require that we address whether, in light of the relative importance of the private and public interests at stake and the impact on those interests of an erroneous determination, the preponderance of evidence standard fairly allocates the risk of error between the parties. This requires "a very fundamental assessment of the comparative social costs of erroneous factual determinations" in the context of Megan's Law proceedings. In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). Based on such an assessment, we must determine whether registrants can fairly "be asked to share equally with society the risk of error." Addington, 441 U.S. at 427.

[219] We have previously identified the private and public interests at stake in a Megan's Law proceeding. For present purposes, it is important to add that the impact of an erroneous determination on those interests is significantly dissimilar. An erroneous underestimation of an individual's dangerousness will not necessarily result in harm to protected groups. Registration alone, which Megan's Law mandates regardless of an offender's classification, allows law enforcement officials to monitor offenders and provides considerable disincentive to offenders to commit criminal acts because of the high likelihood of being apprehended. On the other hand, an overestimation of an individual's dangerousness will lead to immediate and irreparable harm to the offender: his conviction becomes public, he is officially recorded as being a danger to the community, and the veil of relative anonymity behind which he might have existed disappears.

[220] In this context, we find Addington to be the most helpful authority. The civil commitment statute involved there required the court to determine, inter alia, whether "hospitalization [of the individual who was the subject of the proceeding] in a mental hospital [was required] for his own welfare and protection or the protection of others." Id. at 420. Thus, there, as here, the trier of fact was required to predict future dangerousness. Moreover, the interests which the state had in civil commitment proceedings under the statute were similar to the interests of the state here-- protecting the public from violence--and the risks attending an erroneous finding against the state are, therefore, similar. Additionally, registrants share with individuals facing civil commitment an important interest that was stressed in Addington. As the Court explained:

[221] [I]t is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena "stigma" or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.

[222] Id. at 425-26.

[223] It is true, as the state points out, that a registrant in a Megan's Law proceeding does not face the same restrictions on his physical freedom that a potential committee faces in civil commitment proceedings. It is clear from Santosky, however, that due process requires a clear and convincing standard even in the absence of a threat of physical restraint when the "loss threatened by [the] particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder." Santosky, 455 U.S. at 758. As the Court observed in Santosky:

[224] This Court has mandated an intermediate standard of proof--"clear and convincing evidence"--when the individual interests at stake in a state proceeding are both "particularly important" and "more substantial than mere loss of money." Addington v. Texas, 441 U.S., at 424. Notwithstanding "the state's `civil labels and good intentions,' " id., at 427, quoting In re Winship, 397 U.S., at 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with "a significant deprivation of liberty" or "stigma." 441 U.S., at 426, 426. See, e.g., Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U.S., at 285 (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization).

[225] Santosky, 455 U.S. at 756.

[226] We must, therefore, ask whether the preponderance of evidence standard, which "allocates the risk of error nearly equally" between an erroneous overestimation or underestimation of a registrant's future dangerousness, "reflect[s] properly the [] relative severity" of these erroneous outcomes. Id. at 766. Addington supplies the answer. Because "the possible injury to the individual [registrant] is significantly greater than any possible harm to the state," the registrant, consistent with due process, cannot "be asked to share equally with society the risk of error." 441 U.S. at 427. It necessarily follows that the due process clause requires that the state prove its case by clear and convincing evidence in a Megan's Law proceeding.

[227] In reaching this conclusion, we have not been unmindful of the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). In McMillan, a Pennsylvania sentencing statute set a mandatory minimum for those convicted of a crime while using a visiblefirearm. The issue there was whether a "sentencing consideration," such as the presence of a firearm, need be proved by more than a preponderance of evidence. The Court held, affirming a long tradition, that proof by a preponderance of evidence is sufficient in the sentencing context. Here, however, we are not dealing with sentencing. Sentencing occurs during and is part of the criminal proceeding; its purpose is to specify the sanction to be imposed as a result of one's conviction by proof beyond a reasonable doubt. A Megan's Law hearing, by contrast, is a civil proceeding that stands apart from the criminal proceeding in which one was convicted and sentenced. See C.A., 679 A.2d at 1164.*fn29 Moreover, as we have discussed, the factual determinations required in a Megan's Law hearing are of greater complexity than those typically involved in sentencing. Accordingly, we conclude that it is entirely consistent with McMillan to require a higher standard of proof in a Megan's Law proceeding.

[228] VII. CONCLUSION

[229] Application of Megan's Law to the class certified by the district court will not violate the Ex Post Facto or Double Jeopardy Clauses of the Constitution. The Due Process Clause, however, would be violated by any Tier 2 or Tier 3 notification that occurred without a prior opportunity to challenge the registrant's classification and notification plan in a hearing at which the prosecutor has the burden of persuasion and must prove her case by clear and convincing evidence. Accordingly, the judgment of the district court will be reversed and this matter will be remanded with instructions (1) to enter an injunction foreclosing notification in Tier 2 and Tier 3 cases without compliance with these requirements of procedural due process, and (2) to deny any further relief.

[230] A True Copy:

[231] Teste:

[232] Clerk of the United States Court of Appeals for the Third Circuit

[233] BECKER, Circuit Judge, concurring and dissenting with respect to Parts I-V of the majority's opinion, which primarily discuss the question whether the notification provisions of the challenged statute violate the Ex Post Facto Clause or the Double Jeopardy Clause; and concurring in Part VI of the majority's opinion regarding the process due a registrant at a tier classification hearing.

[234] The societal pressure for legislation designed to prevent terrible tragedies such as befell Megan Kanka and her parents is hydraulic. The pressure is understandable, for Americans are a fundamentally decent people, and legislation such as Megan's Law is thus the product of good intentions. Unfortunately, however, earthly life is fraught with so much uncertainty that we cannot legislate against the vagaries of chance. In their desire to make everything right, legislators sometimes overlook this basic fact, and enact laws that not only fail to achieve their laudable ends, but also cause serious harm. This appeal involves a textbook example of that phenomenon.

[235] I do not quarrel with much of what the majority has said in that portion of its fine opinion dealing with the definition of punishment. Importantly, I agree with its conclusion that our decision in Artway v. Attorney General of New Jersey, 81 F.3d 1235 (1996) remains viable even in the wake of Kansas v. Hendricks, ___ U.S. ___, 65 U.S.L.W. 4564 (U.S. June 24, 1997) (Nos. 95-1649, 95-9075), and United States v. Ursery, ___ U.S. ___, 116 S. Ct. 2135 (1996), and that we must apply the Artway test for what constitutes punishment under the Double Jeopardy Clause and the Ex Post Facto Clause to determine the validity of the challenged statute. Where we part company is over the second prong of the Artway test -- objective (legislative) intent, a consideration that is heavily freighted with history. History, a consideration deemed by the Supreme Court to be the barometer of legitimacy in so many constitutional cases, is telling in the resolution of this appeal.

[236] Tacitly recognizing the deep, historic roots of the plaintiff's double jeopardy and ex post facto claims, the majority deftly tiptoes over the "stocks, cages, and scarlet letters referenced by appellants," and asserts that other forms of the dissemination of information generated by our criminal justice system "constitute far more compelling analogies" to Megan's Law. But the majority's analogies are misplaced. Warning or wanted posters and quarantine notices provide very different information from that provided by the community notification provisions of Megan's Law. Instead, the more apt historical antecedents to notification can be found in the shaming punishments of colonial America, which were indubitably and unabashedly punitive. Moreover, nothing in the design or operation of the notification provisions of Megan's Law contradicts this historical understanding. Because the history of notification evidences an objective punitive intent, and because the design or operation of notification does not negate this objective intent, the notification provisions of Megan's Law must be considered punishment under Artway's second prong. I therefore dissent from the majority's conclusion in Part V that Megan's Law passes constitutional muster.

[237] Failure to meet the second prong of the Artway test is fatal to the statute, and hence I do not ground my dissent on Artway's third prong dealing with the"effects" of notification. However, because of the relevance of effects to application of the presumption in favor of subjective legislative intent over objective manifestations of that intent, and because of the general importance of the issue, which I think is much closer than the majority describes it, I report my conclusion that its treatment of the"effects" prong of Artway is quite problematic. More specifically, its novel holding that nothing short of the deprivation of a sufficiently fundamental interest can give rise to an effect that would constitute punishment is, I believe, incorrect. Further, the majority improperly narrows the Artway effects test both procedurally and substantively.

[238] I join in those parts of the majority's opinionfinding a Rooker-Feldman bar to our review of E.B.'s challenge, and declaring unripe the challenge to the state's authority to dispense with notice prior to tier classification hearings in emergency situations. I also join in Part VI of the majority's opinion holding that the due process clause forbids the imposition of the burden of persuasion at a Megan's Law tier classification hearing on the offender and that that burden should be by clear and convincing evidence.

[239] Finally, while I recognize that there is arguably a strong presumption favoring the subjective intent of a legislature in determining whether a measure is punitive such that only the clearest proof of objective intent will undermine that subjective intent, I believe that application of this standard in the present context is misplaced. The purpose of the standard is to determine legislative intent. There is thus no need to apply the standard here because the historical antecedents to notification provisions make that intent patent. Put slightly differently, assuming that such a standard does apply, I believe that the history of notification, the design of notification provisions in Megan's Law, and the effects of notification provide sufficient proof to show an objective punitive intent, notwithstanding the subjective intent to the contrary. In other words, the objective manifestations of the legislative intent evidence a punitive purpose.

[240] I. DO THE NOTIFICATION PROVISIONS OF MEGAN'S LAW CONSTITUTE PUNISHMENT?

[241] A. Introduction

[242] The central issue in the case, as the majority's opinion makes clear, is whether the notification provisions of Megan's Law constitute punishment.*fn30 If not, then neither the Ex Post Facto Clause nor the Double Jeopardy Clause is implicated.

[243] Like the majority, I believe that Artway provides the proper legal standard to govern whether notification is to be considered punishment. I join in its lucid explanation as to why the Artway test survives the recent Supreme Court cases in Ursery, and in Hendricks. I therefore turn to how the Artway test applies to the notification provisions of Megan's Law. Because, as the majority explains, our conclusion in Artway that the actual purpose of the registration provisions of Megan's Law is non-punitive effectively requires us to conclude that the actual purpose of the notification provisions is similarly non-punitive (satisfying Artway's first prong), I proceed to Artway's second prong.

[244] B. The History Subpart of the Artway Test; Overview

[245] I begin with the so-called history subpart of the objective purpose prong of the Artway test. Pursuant to this subpart, if historical analysis shows that the measure in question has been regarded as punishment, and if the text or legislative history of the measure does not negate this traditional understanding, we must consider the measure punitive. See Artway, 81 F.3d at 1263.

[246] It is here that I most disagree with the majority's opinion. In particular, I believe that it incorrectly frames the historical analysis, first by relying on immaterial precedent, and then by applying insufficiently comparable historical analogues to the notification provisions of Megan's Law. A better reasoned analysis likens the notification provisions of Megan's Law to the shaming punishments of colonial America -- the scarlet letters of literary fame-- leaving no doubt that the objective purpose of these provisions is punitive. The discussion may be put in proper perspective by looking at Supreme Court jurisprudence, and we do not have to look beyond a few of the Supreme Court cases decided in the last month of the October 1996 term. These cases are suffused by references to and reliance on historical analysis.

[247] Perhaps the most apposite case is Hendricks itself, where the Court made use of the historical understanding of a measure to determine whether it was punitive. Holding that a Kansas civil commitment statute was not punitive, the Court noted that restricting the freedom of the dangerously mentally ill "is a legitimate non-punitive governmental objective and has been historically so regarded." Hendricks, 65 U.S.L.W. at 4569.

[248] In Richardson v. McKnight, 65 U.S.L.W. 4579 (U.S. June 24, 1997) (No. 96-318), holding that prison guards employed by private prison management firms do not enjoy qualified immunity, the Court looked to the historical traditions of immunity applicable to privately employed prison guards, going so far as to examine the operation of jails in medieval England. Similarly, in Washington v. Glucksberg, 65 U.S.L.W. 4669 (U.S. June 26, 1997) (No. 96-110), canvassing the historical treatment of suicide and assisted suicide, the Court noted that "for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and assisting suicide." Id. at 4671.

[249] In Printz v. United States, 65 U.S.L.W. 4731 (U.S. June 27, 1997) (Nos. 95-1478, 95-1503), the Court relied heavily on history in analyzing the Brady Handgun Violence Prevention Act, surveying statutes and executive actions from the earliest days of the Republic to determine whether the federal government can constitutionally require states to execute federal regulatory laws. And, in Reno v. ACLU, 65 U.S.L.W. 4715 (U.S. June 24, 1997) (No. 96-511), in striking down provisions of the Communications Decency Act of 1996, the Court looked to more modern history and distinguished the Internet from radio broadcasts, noting that the Internet has no history of limited First Amendment protections.

[250] Although I have cited only a few examples, these recently decided cases make patent that history plays a vital role in constitutional adjudication. See John Paul Stevens, A Judge's Use of History, 1989 Wis. L. Rev. 223, passim (suggesting that the interaction of history and the law is ripe for study and discussing the use of historical analysis in three cases).*fn31

[251] C. Historical Analogues to Notification Provisions

[252] 1. The Applicability of Criden

[253] The majority's treatment of history focuses first on United States v. Criden, 648 F.2d 814 (3d Cir. 1981). There, we rejected a suggested analogy between the media re-broadcast of material placed into evidence at a criminal trial and the shaming punishments of colonial America. See id. at 825. The majority essentially argues that the notification provisions at issue here are like the challenged re-broadcast in Criden. It reasons that, because the challenged re-broadcast is unlike the shaming punishments, the notification provisions must also be unlike them, and hence the purpose of the notification provisions does not correspond with the purpose of the shaming punishments. I believe that the majority's reliance on Criden is misplaced. The notification provisions in Megan's Law are different from the re-broadcast in Criden in a number of respects. The most striking is that the re-broadcast itself is carried out by the private media (who obtained the information from the state), whereas the notification provisions are carried out by the state.

[254] This distinction makes all the difference. Here, New Jersey not only made the criminal history of convicted sex offenders publicly available, it also instituted an affirmative, state-run program to disseminate that information. In one imaginable scenario, New Jersey could simply have allowed private entities to disseminate this public information about the offender's record. The state, however, chose to take the additional step of disseminating the information itself. The purpose of that deliberate decision is at issue here. To determine the objective purpose of the notification provisions, we must look to measures in which the dissemination of criminal history information is state-run, not to measures in which the dissemination occurs independently from state action. For the same reasons that Criden is inapposite, the majority's discussion of public indictments, public trials, the public imposition of sentence, and "rap sheets" is unhelpful. In none of these cases is the state itself actively disseminating information.

[255] 2. Analogy to Shaming Punishments

[256] In contrast, the state-run dissemination of criminal history information is central to the operation of shaming punishments.*fn32 As a result, shaming punishments are, as a group, measures that should be considered in our historical analysis. By shaming punishments, I mean a variety of punishments, common in the American colonies, ranging from the admonition to branding or maiming and banishment.

[257] In an admonition, a magistrate or clergyman would lecture the offender privately about his misdeeds and seek his repentance. See Adam J. Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1224 (1982). The offender would then offer a public apology before the community either in court, see id., or in church, see Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1912-13 (1991). Once forgiven by the community, the offender was drawn back into its fold, thereby restoring a moral order upset by the offense. See id. at 1913. In a similar vein, offenders were often forced to stand in a public place for a time displaying their offense written on their clothing or on their bodies. See Lawrence M. Friedman, Crime and Punishment in American History 38 (1993). This public display took many forms in the colonies, and might include "[s]entences to the pillory, to the stocks, to lashes at the whipping-post, and to hours on the gallows with a rope around the neck." Hirsch, supra, at 1225.

[258] A court might also require that the offender permanently display a label representing his offense -- for instance, a scarlet letter "A" for the crime of adultery. See Massaro, supra, at 1913. Such labels were generally cut from cloth and sewn on the offender's outer garments. See Friedman, supra, at 40. Another form of permanent labeling was the brand, in which the authorities burned a label directly onto the offender's body. See id. A murderer might be branded with an "M", a thief with a "T". See Jon A. Brilliant, Note, The Modern Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357, 1361. Colonial New Jersey, for example, punished burglary by branding the offender's hand for a first offense, and his forehead for subsequent offenses. See id.

[259] Mutilation or maiming was similar to branding except that it did not necessarily signal the precise offense the offender had committed. See Friedman, supra, at 40. A common form of mutilation or maiming was the detachment of an ear. See id. The effect of branding, mutilation, or maiming was often to cast the offender out of society once and for all. See Hirsch, supra at 1228. Unlike the aftermath of an admonition, the community did not welcome the offender back into society, but shunned him. See id. Just a short step away from branding, mutilation, and maiming, was banishment, a forced exclusion from the community. Banishment was reserved for those who presented "a permanent danger" or who engaged in "repeated criminality." See Friedman, supra, at 40. "Those who would not repent, those who could not be regathered into the bosom of society, had to be driven out." Id.

[260] These various punishments were effective -- they had "sting" -- because each punishment publicized accurate information about the offender's misdeeds, and because of the cultural milieu of a colonial settlement. A settlement in the American colonies was "small-town life at its most communal." Id. at 37. Thus, once an offense had been made public, the entire community became aware of it, and such publicity was the cause of shame. In addition, colonists have been described as ultra sensitive to criticism from their fellows, see Massaro, supra, at 1912, especially from those whom they knew and respected, see Hirsch, supra, at 1233-34. Therefore, the public dissemination of the fact that a community member had committed some offense was especially calculated to provoke shame in the wrongdoer.

[261] As the majority recognizes, these shaming punishments often were imposed in addition to physical punishments, such as whippings. See Friedman, supra, at 40. However, the physical punishment did not lessen the "sting" associated with the public dissemination of the offense. See Hirsch, supra, at 1232 ("A sentence to whipping or the pillory had worked primarily through the media of psychic pain and shame."). In fact, the physical punishment was seen as being effective only insofar as it resulted in the offender being shamed by the publicity of his offense. See id. at 1233-34 ("As the aura of shame and psychic trauma surrounding the penalty evaporated, there was left behind only a small core of physical pain quite insufficient to prevent offenses."). Further, the authorities often dispensed with physical punishments altogether because the"sting" associated with the publicity was more sharp. See id. at 1226. Finally, some shaming punishments had no physical components at all; for instance, those condemned to display a label representing their offense did not necessarily suffer physical punishment.

[262] 3. Warning Posters, Wanted Posters, and Quarantine Notices Compared

[263] As the foregoing discussion makes clear, shaming punishments are analogous to the notification provisions contained in Megan's Law. But that does not end our inquiry. Other measures also rely on the state dissemination of information. The majority mentions two such measures: warning or wanted posters, and quarantine notices.*fn33 The question, then, is whether the notification provisions of Megan's Law are more like the shaming punishments or more like warning or wanted posters, or quarantine notices. The difficulty in pinpointing the proper historical analogy to notification provisions lies in identifying the characteristics of such provisions (in addition to the state dissemination of information) that will help us to determine their objective purpose. This analysis is further complicated, at least in part, by the fact that "[u]nquestionably punitive statutes share traits with laws that are universally accepted as [remedial]." Note, Prevention Versus Punishment: Toward a Principled Distinction in the Restraint of Released Sex Offenders, 109 Harv. L. Rev. 1711, 1725 (1996).*fn34

[264] The majority ignores an important component of the shaming punishments when it reasons that warning or wanted posters and quarantine notices are more apt analogies to notification provisions than are the shaming punishments. The majority essentially believes that the characteristic that notification provisions share with warning or wanted posters and with quarantine notices (and the characteristic that is sufficient warrant to justify its analogy) is the general type of information that each measure disseminates. In other words, it reasons that, because notification provisions alert the community to a risk, they must be akin to warning or wanted posters and to quarantine notices which similarly alert the community to a risk.

[265] The problem with this reasoning is that -- like the warning or wanted posters, and quarantine notices-- the shaming punishments also alerted the community to a risk, the risk that the offender would re-offend. See, e.g., Hirsch, supra, at 1228 ("Less common, but equally effective, were branding and mutilation, punishments that fixed upon the offender an indelible `mark of infamy,' to warn community members to keep their distance."); Massaro, supra, at 1913 ("Branding and maiming also were designed in part to prevent the offender from committing future similar acts, either by warning future victims of their criminal propensities or by disabling the offender." (footnote omitted)).

[266] Moreover, notification is a judicially endorsed pronouncement that the registrant presents a danger to the community. In that sense, notification is closer to the shaming punishments than to warning or wanted posters, or quarantine notices. There is no judicial involvement in the issuance of warning or wanted posters, or of quarantine notices. Judicial endorsement, by a disinterested magistrate, is different in kind from a determination by other public agencies. Therefore, one cannot contend that warning or wanted posters and quarantine notices are better analogies to the notification provisions than are the shaming punishments simply because warning or wanted posters and quarantine notices alert the community to a risk.

[267] New Jersey argues that, because the purpose of the notification provisions and that of measures such as warning or wanted posters, or quarantine notices is to alert the community to some danger (a remedial purpose), we must consider notification provisions historically analogous to these other measures. As the foregoing discussion suggests, this argument is flawed. The goal of the history subpart of the Artway test was to determine the objective purpose of a particular measure by examining the historical understandings of analogues to the measure in question. It does not comport with this methodology to choose as data points historical analogues based solely on the claim that they served the same purpose as the measure in question. To do so would assume the very issue that is in dispute, and then reach a conclusion by way of circular reasoning.

[268] 4. The Mechanism of Notification; Its Relation to the Choice of Historical Analogues

[269] Because we are concerned with the objective purpose of the state dissemination of information, we must examine the particular information the state chooses to disseminate in order to determine that objective purpose. As the majority describes the process of notification, New Jersey provides recipients of notification with the following information: the identity of the convicted sex offender, his physical description, the location of his dwelling, the place of his employment, a description of his automobile, his license plate number, and the offense(s) for which he was convicted and by which the notification was triggered.*fn35

[270] This is the same type of information the state disseminated in carrying out the shaming punishments. Because the offender would have been well known to those who witnessed the shaming punishment, simply by placing the offender on display before the community was enough to disseminate his identity, his physical description, the location of his dwelling, and the place of his employment.*fn36 In fact, the shaming punishments became less frequent when such information could not be conveyed by public display alone. See Hirsch, supra, at 1228-34 (describing the decreased use of shaming punishments as colonial communities grew in size thereby increasing the likelihood that the offender was a stranger to the witnesses of his punishment); see also Dan M. Kahan, What do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 631 (1996) ("Early Americans turned to imprisonment in large part because they believed that existing criminal penalties had lost the power to shame.").*fn37 Moreover, as noted above, central to many of the shaming punishments was some notice-- e.g., a sign, a label, or a brand -- of the offense(s) for which the offender was being punished.

[271] In contrast, warning or wanted posters and quarantine notices do not disseminate the same type of information disseminated by notification provisions. A warning or wanted poster, displayed in an effort to catch escaped prisoners or to arrest alleged criminals, obviously does not include information about the location of the offender's current dwelling, nor of his current employment. If the authorities had this information, they would know how to apprehend the offender. Such posters also typically include information about the facts of the individual's escape in the case of a warning poster, and the facts of the individual's alleged crime in the case of a wanted poster. Quarantine notices, too, include information different from that included in notification provisions. The most prominent difference is that quarantine notices include health-related information; such notices make no mention of criminal or alleged criminal activity. Information provided pursuant to notification, then, links the registrant to some act for which he is blameworthy. Health related information is normally not related to culpability.

[272] The state attempts to distinguish the notification provisions from the shaming punishments in terms of the scope of the notification. New Jersey makes much of the fact that the notification provisions, unlike the shaming punishments, do not involve the dissemination of information to the entire community. I believe that the state overstates the significance of this difference. Though notification under both Tier 2 and Tier 3 is intended to be limited, the design of the provisions seems to encourage more widespread dissemination. Tier 3 recipients are not warned that the information is confidential. Tier 2 recipients are so warned, but I fail to see how that warning is to be taken seriously. Under Tier 2, notification is given to the staff of organizations charged with the care or supervision of children and/or women. Such notification would effect the remedial purpose of the statute-- the protection of the children and women under the care of the organizations -- only if the organizations pass the notification information to the children and women under their care.

[273] New Jersey also emphasizes that notification is tailored to the specific offender and may not occur at all. In emphasizing this aspect of notification, the state fails to appreciate fully the textured nuances of the shaming punishments. Shaming punishments were also tailored to the specific offender and often did not occur at all. For instance, permanent labeling and branding were reserved for offenders whose likelihood of re-offense was high. See Friedman, supra at 40. Only the "deep-dyed sinner" would suffer such a fate. Id. Further, shaming punishments were by no means automatic; not all offenders would be so punished. Fines or bonds for good behavior (payments made to the authorities that were forfeited should the surety commit a misdeed within a certain time period) were common punishments for lesser offenses. See Hirsch, supra at 1224. And, even for more serious offenses, an offender could often simply pay a fine and avoid a shaming punishment altogether. See Friedman, supra at 38 (describing the punishment for a woman who struck her husband as either half an hour at a town meeting with her offense written on her forehead or the payment of a fine to the county).

[274] 5. Summary: Shaming Punishments as the Best Analogy

[275] In sum, the foregoing analysis demonstrates that the closest historical analogues to the notification provisions of Megan's Law are the shaming punishments, which were traditionally considered punitive.*fn38 Like the shaming punishments, notification is carried out by the state. In that sense, notification is unlike measures in which the state merely allows private individuals or entities to access information and then allows those individuals to release that information more broadly. Moreover, like the shaming punishments, notification provides the community with information about the registrant's identity and physical description, place of residence, place of employment, and criminal history. Such information is judicially endorsed. The information provided by notification is different from that provided by warning or wanted posters, which do not provide information about residence and employment, and quarantine notices, which do not provide information about criminal history; none of this information is judicially endorsed. Above all notification is the functional equivalent of shaming punishments; notification publishes information about the registrant calculated to reach the entire community and likely to lead to public opprobrium.

[276] D. Does the Text, Legislative History, or Design of the Notification Provisions Demonstrate That They are not Punitive?

[277] 1. Introduction; The Role of Law Enforcement

[278] Under Artway, the notification provisions must be considered punishment provided the text or legislative history does not demonstrate that they are not punitive. I therefore turn to the question whether the text or legislative history so demonstrates. This part of the analysis requires an examination of the actual operation or design of the measure at issue. See Hendricks, 65 U.S.L.W. at 4568-70 (examining the design of the Kansas civil commitment statute). It is an inquiry focused on the question whether the legislature designed the statutory scheme in such a manner so as "to contradict the historical understanding of [the measure] as punishment." Austin v. United States, 509 U.S. 602, 619 (1993).

[279] Perhaps the most striking feature of the statutory design is its placement of the tier classification determination and of the notification process squarely within the criminal justice system. The chapter that contains the registration and notification provisions is contained in the state's Code of Criminal Justice. Cf. Hendricks, 65 U.S.L.W. at 4568 (relying in part on the decision by the state of Kansas to place its Sexually Violent Predator Act within the probate code, instead of the criminal code, to conclude that the challenged measure was not a criminal proceeding). It is the Attorney General of New Jersey, a law enforcement officer, who is charged with "promulgat[ing] guidelines and procedures for the notification required" by Megan's Law. N.J. Stat. Ann. Section(s) 2C:7-8(a) (1995).

[280] The guidelines are to be formulated with the advice of a "notification advisory council" comprised, at least in part, of professionals from various fields outside of official law enforcement, but the professionals are all involved, at least to some degree, in the criminal justice system, broadly defined, and this council provides, as its name suggests, mere recommendations. See id. Section(s) 2C:7-11. Once in place, the guidelines are to be implemented by the county prosecutors: they determine the risk that a particular offender poses for re-offending, thereby setting the tier classification, and they determine the means of providing notification. See id. Section(s) 2C:7-8(d).

[281] As the guidelines are currently written, the county prosecutors have significant leeway both in determining the appropriate tier classification and in fashioning the proper notification plan. Application of the Registrant Risk Assessment Scale is by no means ministerial; the county prosecutors must determine whether the particular offender poses a low, moderate, or high risk to the community for each factor in the Scale. Although the Scale provides guidance to the prosecutors making this determination, it does not eliminate from the process prosecutorial evaluation. The guidelines allow prosecutors to enlist the assistance of persons outside the prosecutor's office, such as social workers or psychologists. However, the guidelines leave formulation of the notification to the considered judgment of the county prosecutors. It is up to those law enforcement officials to ensure that the notification is properly tailored to reach those at risk of being victimized by the particular offender.

[282] Finally, law enforcement officers, whether of the municipality in which the offender intends to reside or of the state police force, provide the actual notification. See id. Section(s) 2C:7-6, 2C:7-7.

[283] 2. Promoting the Aims of Punishment

[284] The operation of the statute will, moreover, promote"the traditional aims of punishment -- retribution and deterrence." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963); see Hendricks, 65 U.S.L.W. at 4568 ("As a threshold matter, commitment under the Act does not implicate either of the two primary objectives of criminal punishment -- retribution or deterrence."). Of course, simply because a measure has the effect of promoting retribution and deterrence does not necessarily mean that its purpose was to do so. See Artway, 81 F.3d at 1255. Still, such an effect suggests that the particular measure was not designed in a way that contradicts the historical understanding of its analogues as punitive. That the notification provisions of Megan's Law promote retribution and deterrence is demonstrated as follows.

[285] By publicizing an offender's crime to the community, notification realizes justice, see id. (explaining that retribution "does not seek to affect future conduct or solve any problem except realizing `justice' "), in that it inflicts suffering on the offender. It is undisputed that notification results in shaming the offender, thereby effecting some amount of retribution. This suffering "serves as a threat of negative repercussions [thereby] discourag[ing] people from engaging in certain behavior." Id. It is, therefore, also a deterrent. There is no disputing this deterrent signal; the notification provisions are triggered by behavior that is already a crime, suggesting that those who consider engaging in such behavior should beware. See Doe v. Pataki, 940 F. Supp. 603, 623 (S.D.N.Y. 1996) ("The Act is designed in such a fashion as to suggest that it is punitive. It contains classic indicia of a punitive scheme. Its provisions are triggered by behavior that is `already a crime.' ").

[286] 3. Excessiveness

[287] The design inquiry is also furthered by an analysis of whether the notification provisions are excessive in relation to their stated remedial purpose. In a several important respects, they are. First, the criminal acts that, pursuant to Megan's Law, trigger registration and potentially subject an offender to notification, are over-broad. For example, kidnapping, even without a concomitant sexual offense, triggers notification, see N.J. Stat. Ann. Section(s) 2C:13-1(c)(2)(c); so, too, does consensual sexual contact that is criminalized merely because of the age of one of the participants, see, e.g., id. Section(s) 2C:14-2(a)(1), (b), (c)(5). See Doe v. Pataki, 940 F. Supp. at 623-24 (describing New York's Megan's Law as excessive because it covers individuals such as a "21-year old who engages in sexual intercourse with a 16-year old (who is not a spouse)," a person who engages in incest, and a person who restrains another under the age of 17); Kansas v. Myers, 923 P.2d 1024, 1042-43 (Kan. 1996) (describing Kansas's Megan's Law as excessive because "[s]everal of the listed felonies [triggering registration and notification] include what otherwise might be viewed as voluntary sexual contact between two persons that is considered criminal because of the minority status of the victim and the fact that the victim is not married to the accused").

[288] Next, notification under Tier 3 is often provided to those who simply do not need to know that there is a released sex offender nearby. Tier 3 notification is to be provided to "members of the public likely to encounter the person registered." N.J. Stat. Ann. Section(s) 2C:7-8(c)(3) (1995). But the "likely to encounter" standard does not limit notification to vulnerable populations. It is a standard based largely on geographic proximity, see Doe v. Poritz, 662 A.2d 367, 385 (N.J. 1995), rather than whether the recipient of notification needs protection (e.g., a child) or can protect others (e.g., a parent). Under the statute, a move by a registrant into a retirement community will trigger notification of his neighbors.*fn39

[289] Similarly, the type of information required to be provided by the guidelines is excessive; it is information individual recipients often simply do not need to know. Individuals who receive notification learn of an offender's place of residence and his place of employment, regardless of their relative locations. If an offender does not work at a location near to his place of residence, which I suspect is not uncommon, then such information is only in part useful for protection. A recipient of notification who lives, attends school, works, or is otherwise located near to an offender's place of residence should be little concerned about the location of the offender's place of employment (and vice versa). Knowing the offender's place of residence might lessen the risk that the recipient will become a victim of the released offender; he or she can avoid the offender's house, for example. But, knowing the offender's distant place of employment offers no protective assistance to the recipient. If the person is not likely to encounter the offender at the offender's place of employment (or place of residence), why would he or she need or want to know such information?

[290] 4. Summary of "Design"

[291] In sum, the design of the notification provisions does not contradict the historical understanding of analogues to such provisions as punitive. Notification is placed in New Jersey's criminal code and is structured and carried out by state law enforcement officials. Further, notification promotes the aims of retribution and deterrence. Finally, in important respects, notification is excessive. The particular recipients who receive notification and the type of information they receive are not carefully tailored to the remedial goals notification is intended to serve.

[292] E. Notification Fails the History Subpart of Artway

[293] As the foregoing discussion makes clear, the proper historical analogues to the notification provisions of Megan's Law are the shaming punishments of colonial America. Clearly punitive, such punishments evidence an objective punitive purpose for the notification provisions. Because the design of the notification provisions-- especially the placement of the provisions in the state criminal code and the placement of the responsibility of enforcing them with law enforcement officials, the excessiveness of their operation, and their promotion of retribution and deterrence -- does not negate this objective punitive purpose. Therefore, I believe Megan's Law fails the history subpart of the second prong of the Artway test and should be considered punishment. As a result, the judgment of the district court should be reversed. This conclusion is buttressed by my discussion infra at Part II.C. of the extent to which, by reason of the network of Megan's Laws throughout the nation, notification is akin to banishment, another traditional colonial measure in the nature of punishment. See supra, at Part I.C.2.*fn40

[294] II. EFFECTS

[295] A. Introduction

[296] The final prong of the Artway test concerns the actual effects of the challenged measure. According to Artway, "[i]f the negative repercussions -- regardless of how they are justified -- are great enough, the measure must be considered punishment." Artway, 81 F.3d at 1263.*fn41 The analysis required under this part of the test is one of degree, and is guided by the signposts of already decided cases. See id.

[297] The conclusions I have already reached -- that Megan's Law fails the objective purpose prong of the Artway test and must, therefore, be considered punitive -- might make it unnecessary for me to reach the "effects" issue. However, because of the relevance of the effects to application of the clearest proof standard on which the majority relies, see infra Part III, because I believe that the majority's effects analysis is seriously flawed, and also because the enormous importance of the case counsels that I explain why, I discuss the effects of the notification provisions. As I will demonstrate, the majority, in undertaking its own analysis, narrows the test fashioned in Artway . It does so without support, and, given the tenor of the analysis, unnecessarily. I also identify problems with its substantive discussion.

[298] B. Methodology: The Proper Standard for Evaluating Effects

[299] To begin, I quote from the majority's opinion: "It necessarily follows that some limit must be placed on the situations in which a measure's sting alone, despite its remedial purpose and effect, will constitute punishment under those clauses and that classification as punishment on the basis of sting alone must be reserved for cases involving deprivation of the interests most highly valued in our constitutional republic. . . . Interests such as these are sufficiently fundamental to our constitutionally secured liberty that state interference with them can be justified only by the most important of state interests." With the second sentence, the majority states that the line marking the boundary between a non-punitive and a punitive measure varies according to the remedial interest sought to be served by the measure. In other words, it appears that the majority is holding that the more important the remedial interest served by a particular measure the more harsh the sting of the measure's effects may be before the measure is classified as punitive. Nothing in Artway (or, for that matter, in the Supreme Court jurisprudence on which it draws) suggests such a formulation of the effects prong. To the contrary, Artway posits that a particular sting either falls on the punishment side of the line or it does not. At issue here is the particular sting, not the particular remedial interest.

[300] The majority has thus introduced a difficult-to-apply sliding scale into an already complex test. This needless complication would render it nearly impossible to determine whether a particular sting is punishment. For example, as we know from Hawker v. New York, 170 U.S. 189 (1898), the revocation of a license to practice one's profession is not considered punishment. However, could such a revocation be punishment if the remedial interest served by the challenged measure is relatively unimportant? If so, at what point does the importance of the remedial interests render such a revocation non-punitive? Under the majority's reading of Artway, an analysis of the effects prong requires a two-track inquiry, guided only by a few fixed points. I fear that this amorphous inquiry might lead to an elusive or protean jurisprudence, something to be avoided.

[301] Moreover, because the other prongs of the Artway test adequately stir into the mix the remedial interests served by the particular measure, we need not examine those interests under the effects prong. The actual purpose prong examines whether the legislature subjectively intended the measure to advance remedial interests. All three subparts of the objective purpose prong require the reviewing court, to some degree, to consider the remedial interests the legislature subjectively believed it was advancing by enacting the challenged measure. Considering the stated remedial purpose under the effects prong might over-emphasize that stated purpose, thereby potentially allowing diversion of attention from the actual operation of the measure.

[302] The majority also narrows the Artway test by requiring that, at a minimum, a challenged measure act to deprive affected persons of a sufficiently fundamental interest before that measure is considered to cause punitive effects. The majority offers no support for this proposition in either logic or precedent, and I am unaware of any. Nothing in Artway (or, for that matter, in the Supreme Court jurisprudence on which it draws) suggests such a formulation of the effects prong. In addition, at least as I read the majority's opinion, defining the effects prong in this manner is unnecessary to the result. The majority apparently believes that the effects caused by notification simply are not harsh enough to classify Megan's Law as punitive. Under my reading of Artway, satisfaction of the effects prong does not require overcoming such a difficult hurdle.

[303] I am especially concerned in this regard because of the indefiniteness of the majority's formulation. It is not apparent to me what would constitute a "sufficiently fundamental interest." Furthermore, without a clear understanding of those interests the deprivation of which might constitute punishment, I am also unsure as to whether the majority adequately defines the universe of interests that it, or I, would deem worthy of protection. In short, I fear that the majority might have left too little room to deal with unforeseen cases in this difficult area of jurisprudence.

[304] In addition to re-formulating the Artway test, the majority also treats the effects of notification in such a manner as to minimize the impact of those effects. First, it emphasizes that the effects of which the offenders complain -- e.g., isolation, public humiliation, loss of employment opportunities, and physical violence -- are indirect. Although I agree that such is the case, I remonstrate against what seems to be overemphasis upon that aspect of notification for, in itself, indirectness of effects is not dispositive.

[305] The Supreme Court addressed the question of directness in California Department of Corrections v. Morales, ___ U.S. ___, 115 S. Ct. 1597 (1995), the very case on which Artway bases the effects prong of its test. The Court struggled with the question whether a change in the procedures governing parole suitability hearings would effect an impact on a prisoner's expected term of confinement. See id. at 1602-05. In concluding that the measure did not constitute punishment, the Court determined that the changes in the relevant procedures "create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes." Id. at 1603. The Court made plain, however, that even the indirect effects of a measure could render it punitive.

[306] Here, the indirect effects of notification are neither "speculative" nor "attenuated." In fact, notification advances the stated remedial purposes of Megan's Law only insofar as it induces many of these indirect effects. For example, public safety is enhanced if potential victims of an offender are warned to avoid him, thereby isolating him from the larger community. If the legislature were not aware that at least partial isolation would necessarily result from notification, I doubt that it would have believed that notification would serve the remedial purposes it sought to advance. And, although not necessarily vital in ensuring the efficacy of Megan's Law, other indirect effects -- e.g., harassment, loss of employment opportunities, and physical violence -- surely were anticipated as also being inevitable. New Jersey was not the first state to adopt notification provisions, and the experiences of other states must have informed the New Jersey legislature as it considered Megan's Law.

[307] In other states, notification has caused harassment, loss of job opportunities, and the like. A study by the Washington State Institute for Public Policy, released in December 1993 (approximately ten months prior to the enactment of Megan's Law), reported numerous instances of harassment following notification in Washington, some quite severe, under its 1990 Community Protection Act. See Sheila Donnelly & Roxanne Lieb, Community Notification: A Survey of Law Enforcement 7 (1993). In short, most of the indirect effects of notification are expected and foreseeable.

[308] The second manner in which the majority minimizes the impact of the effects of notification is by separating the analysis into two distinct parts. It first examines the effect of notification on the reputational interests of the offender; then it examines the effect of notification on the increased risk of physical violence. The majority concludes that each of these effects, by itself, does not produce a sting harsh enough to classify notification as punishment. It fails, however, to determine whether these effects, if examined together, are sufficiently harsh. The difference between these two approaches is manifest. Individual effects each might produce only a moderate sting; adding together these little stings might, however, produce a great big sting. In the real world, it is the total sting that the recipient feels. It is not clear why the majority chose not to add these stings together. And, at least from my reading of Artway, there is no justification for choosing not to do so. Rather, I believe that Artway (and Morales) require an analysis of all the effects of a measure, provided they are not too speculative or attenuated, and here they are not.

[309] C. Actual Effects

[310] Turning from methodology to substance, I first note my agreement with the majority's identification of the effects caused by notification as including isolation, harassment, loss of employment and housing opportunities, damage to property, and physical violence.*fn42

[311] As is clear from the majority's description of the effects of notification, the burden imposed by the collective weight of all of these effects is borne by the offender in all aspects of his life. At worst, the offender is literally cut off from any interaction with the wider community. He is unable to find work or a home, cannot socialize, and is subject to violence or at least the constant threat of violence. At best, he must labor within significant confinements. Although perhaps some people will hire him or rent him a home, his social intercourse with others is all but non-existent. The effects of notification permeate his entire existence. See Doe v. Gregoire, 960 F. Supp. 1478, 1486 (W.D. Wash. 1997) ("[H]ere the punitive effects are dominant and inescapable."); Roe v. Office of Adult Probation, 938 F. Supp. 1080, 1092 (D. Conn. 1996) ("Notification is an affirmative placement by the State of a form of public stigma on Roe, and this stigma by its very nature pervades into every aspect of an offender's life."). And, although the majority's opinion is eminently fair, I think that it understates the effects of notification provisions. Throughout the nation, there are continual reports of harassment, threats, isolation, and violence. In the margin, I mention some of the most recent occurrences.*fn43

[312] Although the question is very close, I believe that there is a strong argument that the harshness of the effects of notification are closer to imprisonment and revocation of citizenship than to a loss of a profession or of benefits. Like imprisonment and the revocation of citizenship, notification is all-pervasive. In that sense, the offender has almost no refuge from the sometimes severe effects of notification. He may seek to move to another state, but the majority of states has some form of community notification. He could, perhaps, move out of the country to avoid this network of domestic Megan's Laws. At the extreme, then, notification has become, at least for that offender, akin to banishment. See Doe v. Pataki, 940 F. Supp. at 626 ("Notification statutes have resulted in the banishment of sex offenders both literally and psychologically."). This pervasive aspect of notification differentiates it from the loss of employment opportunities and the loss of benefits.*fn44

[313] Perhaps the most difficult question in this context is whether notification is fairly considered punishment when civil commitment -- a form of involuntary confinement -- is not. In Hendricks the Supreme Court held that a state statute allowing the confinement of convicted sex offenders after the expiration of their prison term did not constitute punishment. Important to the Court was the traditional understanding of civil commitment as non-punitive. But beyond that distinction, I note two respects in which notification under Megan's Law may be considered more harsh than the civil commitment statute at issue in Hendricks.

[314] First, anyone confined under the Kansas statute was afforded some form of treatment if such was possible. See Hendricks, 65 U.S.L.W. at 4569-70. No such treatment is available to those subject to notification under Megan's Law, and there is at least some evidence in the record that the isolation engendered by notification may in fact cause some offenders to recidivate. See Prentky Aff. Para(s) 4, Appellants' App. at 189; see also Doe v. Pataki, 940 F. Supp. at 628. Thus, the effects of civil confinement might be rehabilitative, while those of notification are exactly the contrary. Second, the Kansas statute required a yearly reevaluation of the confined offender. See Hendricks, 65

[315] In Flemming v. Nestor, 363 U.S. 603 (1960), the Supreme Court held that the loss of social security benefits did not constitute punishment. In the context of the particular statute, however, the sting of that loss is not as sharp as might be supposed initially. First, the spouse of the beneficiary might still be eligible for benefits. See id. at 606 n.2. Second, the loss is triggered by deportation from the United States. See id. at 604-05 & n.1. There is no indication whether the deportee might be eligible for similar benefits in the country to which he is deported. Thus, the loss of social security benefits in this context does not necessarily render the affected individual destitute or without assistance; he has other places to turn.

[316] In a similar vein, we have recently held that the eviction of a tenant from public housing because of a drug offense is not punitive, see Taylor v. Cisneros, 102 F.3d 1334, 1341-1344 (3d Cir. 1996), but such an eviction did not prevent the affected individual from obtaining housing elsewhere.

[317] U.S.L.W. at 4569. The registration and notification provisions in Megan's Law are applicable for at least fifteen years. See N.J. Stat. Ann. Section(s) 2C:7-2(f) (1995). It is possible, then, that the sting of notification will last far longer than that of civil commitment.

[318] D. Summary

[319] In sum, although I do not rely on my analysis of the effects prong of the Artway test to support my ultimate conclusion, I note that the majority's discussion of effects is seriously flawed in terms of both procedure and substance, casting further doubt upon the judgment and shoring up still further my dissenting posture. The majority improperly and unnecessarily narrows the effects prong of Artway by requiring that a measure deprive an individual of a constitutionally secured fundamental right and by examining the effects in isolated groupings. Finally, its substantive discussion of actual effects is, in important respects, flawed.

[320] III. THE "CLEAREST PROOF" DOCTRINE

[321] The majority's most serious challenge to my position inheres in its argument, citing Hendricks and referring to Ursery, that only the "clearest proof" will negate congressional intent to deem a measure non-punitive. In terms of the Artway test, then, the majority effectively holds that should a measure be considered non-punitive under the test's first (actual purpose) prong, then there is a strong presumption that the measure is non-punitive, and only the clearest proof as to the second (objective purpose) and third (effects) prongs of the test will overcome that presumption. I am unpersuaded. First, the etiology of the "clearest proof" doctrine is such that I doubt that the Supreme Court would apply it in this context with such clear and direct historical antecedents, so plainly punitive in character, to the community notification provisions of Megan's Law. Second, even if the standard were applied here, I believe that the historical context of notification, the design of Megan's Law, and the effects resulting therefrom, provide sufficiently clear proof of objective intent to negate remedial purpose.

[322] The clearest proof standard was first articulated in Flemming v. Nestor, 363 U.S. 603 (1960). In Flemming, the Supreme Court addressed a contention that the legislative history and design of a statute that allowed the Secretary of Health, Education, and Welfare to terminate Social Security benefits payable to aliens deported due to their political affiliations evidenced a punitive congressional intent that negated a stated remedial intent. The Court stated:

[323] We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it.

[324] Id. at 617.

[325] The Court has since employed the clearest proof standard in at least six cases. In Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1 (1961), the Court considered whether, despite manifest congressional intent to the contrary, a measure was actually intended to outlaw the Communist Party. The Court stated that only the clearest proof would negate that congressional intent. In United States v. Ward, 448 U.S. 242 (1980), the Court required the clearest proof that, despite the manifest intent to create a civil proceeding, a fine under the Federal Water Pollution Control Act was nevertheless a criminal proceeding. In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), and in Ursery, the Court applied the clearest proof standard to determine whether civil forfeiture statutes were punitive. Examining the Illinois Sexually Dangerous Persons Act, the Court in Allen v. Illinois, 478 U.S. 364 (1986), stated that only the clearest proof would negate the legislative intent that proceedings determining whether an individual should be committed to psychiatric care were civil in nature. Finally, and most recently, in Hendricks, the Court used the clearest proof standard in the context of a challenge to a civil commitment statute.

[326] Although the Supreme Court has repeatedly applied the clearest proof standard in the context of challenges alleging that subjective legislative intent is different from objective legislative intent, I am unwilling to apply the clearest proof standard in this context, at least until the Supreme Court makes it clear that doing so is appropriate. The clearest proof standard creates a nearly irrebuttable presumption that favors subjective legislative intent over objective manifestations of that intent. In an excess of caution, I eschew exploration of the extent to which such a presumption can create incentives for legislatures to obscure their actual intent with subjective intent, rendering it unwise to employ it in certain circumstance. The purpose of the "clearest proof" exercise is to provide a technique to determine legislative intent. This technique is unnecessary here, where, as I have explained, notification measures are so plainly the direct descendants of historical punitive schemes. It seems to me, moreover, that something more than subjective intent alone must be shown to abrogate the historical understanding that notification measures are punitive. In other words, a legislature's simply denying that it is operating outside of a shared cultural tradition does not make it so.

[327] This argument may be illuminated by flipping the coin over, as it were, and looking at the issue by assuming that the clearest proof standard applies in this case. In such event, I believe that such proof exists. At the threshold, I warn against placing too much emphasis on the meaning of "clearest proof." As Flemming and its progeny make patent, the standard is intended as a kind of warning to the federal courts to give legislatures the benefit of the doubt. It is thus consistent with familiar canons of statutory interpretation and constitutional adjudication stating that legislatures are rational bodies that intend to function within their powers to enact lawful measures. In cases in which there is little doubt, however, there is no benefit to give.

[328] Here, there is little doubt. As Part I.C. makes clear, notification measures have historically been considered punitive. As Part I.D. makes clear, the particular design of notification under Megan's Law in no way contradicts this history. And, as Part II makes clear, the effects of notification measures suggest strongly their punitive nature; the majority's efforts to dilute the Artway effects prong, see supra Part II, are unavailing. Taking the foregoing factors together, then, I conclude that sufficient proof of an objective punitive intent motivating the notification provisions of Megan's Law exists to negate the subjective remedial intent.

[329] IV. CONCLUSION

[330] We should and do endeavor mightily to protect our children from the dangers of the modern world. There is, however, a background risk of violence from which we simply cannot shield them. I believe that the New Jersey legislature desperately wanted to do all that it could to prevent the murder of any child at the hands of a released sex offender. But, if a released sex offender is intent on repeating his offense, there is no reason to believe he will necessarily limit himself to his surrounding community (or, for that matter, limit himself to his state).

[331] Unfortunate though it may be, dangers to our children can come from anywhere. People in the community, especially parents, therefore justifiably warn children more sternly about interacting with strangers, wandering too far from home, staying out past dark, etc. There is no way to determine how many crimes will be prevented by all of the Megan's Laws throughout the country. I suspect, however, that the change in protection secured by notification will be marginal at best. Query whether this marginal change is worth tampering with "an essential thread in the mantle of protection that the law affords the individual citizen." Lynce v. Mathis, ___ U.S. ___, 117 S. Ct. 891, 895 (1997) (discussing that group of constitutional provisions protecting against the retroactive application of new laws).

[332] It is instructive to note that this issue bears a similarity to the challenge the Supreme Court recently faced in Reno v. ACLU, 65 U.S.L.W. 4715 (U.S. June 24, 1997) (No. 96-511). There, underlying the Court's decision to strike down key provisions of a statute purporting to rid the Internet of obscenity is the notion that vital constitutional protections must not be swept away in the understandable fervor to protect our children. Basic constitutional rights fundamental to ordered liberty, like the freedom of speech and the right to be free from the retroactive application of the laws, impose on each of us certain burdens. We will remain a free people only so long as we accept those burdens, even in the face of the very safety of our children. Recognizing the rights of released sex offenders, unpalatable though that may be, is one of them.

[333] Although I am outvoted on the double jeopardy/ex post facto issue, I am at least comforted by our holding that the notification machinery, with all of its attendant consequences, will not be triggered without the significant safeguard of requiring the state to establish the case for notification by clear and convincing evidence.

***** BEGIN FOOTNOTE(S) HERE *****

[334] *fn* Amended per Clerk's Order of 7/16/96

[335] *fn1 The list of crimes was expanded in order to comply with the federal registration law, which became effective September 13, 1994, and conditioned the availability of certain funds upon the creation of a sex offender registration program. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103-322, Title XVII, Section(s) 170101, 108 Stat. 2038 (1994) (codified at 42 U.S.C. Section(s) 14071). On May 17, 1996, the president signed a federal version of Megan's Law, which added a mandatory notification provision to the registration requirements. Pub. L. No. 104-145, 110 Stat. 1345 (1996) (codified at 42 U.S.C. Section(s) 14071(d)).

[336] *fn2 The specific factors and their organization are as follows:

[337] Seriousness of Offense--(1) Degree of Force; (2) Degree of Contact; (3) Age of Victim;

[338] Offense History--(4) Victim Selection; (5) Number of Offenses/ Victims; (6) Duration of Offensive Behavior; (7) Length of Time Since Last Offense; (8) History of Antisocial Acts;

[339] Characteristics of Offender--(9) Response to Treatment; (10) Substance Abuse;

[340] Community Support--(11) Therapeutic Support; (12) Residential Support; and (13) Employment/Educational Stability.

[341] Manual at 6-10; Scale, W.P. App. at 712.

[342] *fn3 The typical warning included in notification materials reads:

[343] Any actions taken by you against this individual, including vandalism of property, verbal or written threats of harm or physical assault against this person, his or her family or employer will result in your arrest and prosecution for criminal acts. THIS INFORMATION IS CONFIDENTIAL!

[344] See, e.g., W.P. App. at 625-27 (emphasis in original).

[345] *fn4 The statute already provided the "likely to encounter" limitation for Tiers 1 and 3. N.J.S.A. 2C:7-8c(1), (3).

[346] *fn5 The defendants initially appealed the district court's ruling to this court, but later withdrew their appeals when the district court entered summary judgment in their favor in W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996).

[347] *fn6 There is some ambiguity as to the number of individual sex offenders whose experiences are represented in the record. In some cases, there are multiple affidavits from family members, landlords, employers, and attorneys. In a few submissions by these third parties, the sex offender's name has been redacted or referenced solely by initials, and we cannot discern whether the information refers to a sex offender already included in the record. The Attorney General characterizes the evidence as discussing the "perceptions or experiences of a total of only twenty-one individual sex offenders," six of whom have been subject to notification. Appellee-Verniero's Br. at 43. The appellants describe the record as including "affidavits of twenty-one persons who were affected by the public disclosure of a prior sex offense." Reply Br. at 17.

[348] Our review reveals 17 affidavits from registrants describing the community's reaction to the knowledge of the individual's sex offenses. In addition, there are family member affidavits that clearly identify two other cases. Hence, we say we have evidence regarding the experiences of at least 19 sex offenders. The record is, however, clear that notification has issued for six of these offenders.

[349] *fn7 One such source is the publicity attending a public arrest and trial. A good example of this is E.B.'s case, where an intense search effort by the Guardian Angels and others resulted in the publication of his name on a radio talk show and in numerous flyers. See Richard Cowen, Guardian Angels Vow to Find `E.B.', The Record, Northern New Jersey, Jan. 26, 1996; Michael Markowitz, Radio Show Airs E.B.'s Name, The Record, Northern New Jersey, Jan. 28, 1996, at A3; Susan Edelman, Guardian Angels Warn Residents, The Record, Northern New Jersey, Jan. 29, 1996, at A3. (Although E.B. presses his own claim, his experiences are also a part of the W.P. record.) Another source is New Jersey's required notification to victims at the time of the offender's parole consideration and the time of his release. See N.J.S.A. 30:4-123.45, 123.48; N.J.S.A. 52:4B-44.

[350] *fn8 In the single assault incident, a registrant was "punched in the nose when he answered his door." Sheila Donnelly & Roxanne Lieb, Washington's Community Notification Law: A Survey of Law Enforcement 7 (Dec. 1993).

[351] *fn9 Consideration of constitutional issues is not inconsistent with the expectation of the Doe Court that Megan's Law proceedings in the trial court will be summary in nature. Once the constitutional issues raised by that law are authoritatively resolved, they will no longer be a component of the routine process.

[352] *fn10 Where, as here, the state Supreme Court exercises its discretion against review, certiorari will lie from the intermediate appellate court to the Supreme Court of the United States. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 678 n.1 (1968); Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 160 (1954).

[353] *fn11 We note that E.B. does not seek to enjoin future proceedings against him under Megan's Law. Cf. Centifanti v. Nix, 865 F.2d 1422, 1430 (3d Cir. 1989). Rather he seeks relief from a judicial judgment in a Megan's Law proceeding that has already terminated. See Valenti, 962 F.2d at 297.

[354] *fn12 As with standing, which also "goes to the subject matter jurisdiction of the . . . court," Page v. Schweiker, 786 F.2d 150, 153 (3d Cir. 1986), jurisdiction over the claims of a single representative plaintiff allows a court to reach the class claims. See Sosna v. Iowa, 419 U.S. 393, 402-03 (1975); see generally Wright & Miller, 7A Federal Practice and Procedure Section(s) 1755 (noting that rule authorizing class actions cannot be construed to broaden or limit subject matter jurisdiction of district courts).

[355] *fn13 In the district court, the Attorney General asked that W.P. be dismissed on grounds of Younger abstention. The district court rejected that contention before entering its preliminary injunction. Although Younger abstention was raised again in the Attorney General's interlocutory appeal from the preliminary injunction, that appeal was withdrawn when the district court entered summary judgment for the defendants. In the appeal now before us, the Attorney General does not ask us to abstain from adjudicating the plaintiffs' constitutional claims; he asks rather that we affirm the district court's adjudication of those claims in his favor. We have no occasion to review the district court's disposition of the Younger abstention issues because the "State voluntarily chooses to submit to a federal forum." Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 480 (1977).

[356] The Sussex County prosecutor, also a defendant in W.P., urges in his brief that the district court erred in failing to abstain but does not ask us to remand with instructions to dismiss. Rather, he asks us to affirm the judgment in his favor if we agree with the district court and to abstain and "remit the named plaintiffs to the state courts" if we do not. Appellee-Dennis O'Leary's Br. at 41. Thus, the Sussex County prosecutor also "voluntarily chooses" to submit to this court's jurisdiction. Hodory, 431 U.S. at 480. Moreover, to the extent that he purports to adopt a contrary position to that asserted by New Jersey's Attorney General, we do not believe that he is entitled to do so. Brown v. Hotel & Restaurant Employees & Bartenders Int'l Union, 468 U.S. 491, 500 n.9 (1984) (notwithstanding the objection of the New Jersey Casino Commission, because "the State's Attorney General has . . . agreed to our adjudication of the controversy, considerations of comity are not implicated, and we need not address the merits of the Younger abstention claim.").

[357] *fn14 To the contrary, we believe the Court's opinion in Ursery confirms, directly or indirectly, that, inter alia, (1) measures motivated by retributive animus are punishment, (2) even when the legislative action is not so motivated, an adverse consequence resulting from an in personam proceeding may be punishment if it is disproportionate to the remedial goal which the measure purports to pursue, and (3) measures that have traditionally been regarded as nonpunitive are not punishment in the absence of a retributive motive. If we considered ourselves free to disregard the Artway standard, we would be required, once again, to "divine" a "test for punishment" by looking for common considerations in essentially the same set of Supreme Court precedents. Artway, 81 F.3d at 1254. With the one exception noted hereafter in the text, we see no reason to believe our result would be materially different if we repeated that process.

[358] *fn15 This aspect of Hendricks was foreshadowed in Ursery where, as we have noted, the Court entertained a double jeopardy challenge to federal civil forfeiture legislation. After concluding that Congress had not intended the legislation as punitive, the Court observed:

[359] Moving to the second stage of our analysis, wefind that there is little evidence, much less the "clearest proof " that we require, suggesting that forfeiture proceedings under 21 U.S.C. Section(s) 881(a)(6) and (a)(7), and 18 U.S.C. Section(s) 981(a)(1)(A), are so punitive in form and effect as to render them criminal despite Congress' intent to the contrary.

[360] Ursery, 116 S. Ct. at 2148 (internal quotation marks and citations omitted).

[361] *fn16 The Legislature finds and declares:

[362] a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for the public safety.

[363] b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons.

[364] N.J.S.A. 2C:7-1; Artway 81 F.3d at 1264.

[365] *fn17 The only other legislative history is the following statement that accompanied the bill when it was introduced in the state senate:

[366] Heinous crimes have been committed against children after [sex offenders'] release from incarceration. The most recent case involves the tragic rape and murder of seven-year-old Megan Kanka of Hamilton Township by a neighbor who had committed sex offenses against children. Residents of the neighborhood had no knowledge of the man's criminal history.

[367] Because sex offenders are likely to be unsusceptible to the "cures" offered by the prison system, the urges that cause them to commit offenses can never be eliminated but merely controlled. The danger posed by the presence of a sex offender who has committed violent acts against children requires a system of notification to protect the public safety and welfare of the community.

[368] Senate Bill No. 14 (N.J. Sept. 12, 1994); Artway, 81 F.3d at 1264.

[369] *fn18 Appellants assert that all we determined in Artway was that the actual purpose of registration is remedial; they claim we said nothing about the legislative purpose for notification. They are mistaken. In Artway, we used what appeared to us to be the nonpunitive actual purpose of notification as the predicate for determining that the motivation for registration is remedial as well. See 81 F.3d at 1264 ("[I]f the legislature's actual purpose in notification was remedial, it is hard to imagine that its purpose in the predicate and less harsh step of registration was punitive.").

[370] *fn19 As the Court expressly recognized in Hendricks, "[p]revious instances of violent behavior are an important indicator of future violent tendencies." 117 S. Ct. at 2080 (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)).

[371] *fn20 New Jersey law specifically guarantees public access to all court records, including those concerning criminal prosecutions. See Doe, 662 A.2d at 407 (citing Executive Order No. 123). Moreover, as the New Jersey Supreme Court noted in Doe, any person, under New Jersey law, "may obtain a complete criminal history from the State Police by providing a name and either date of birth or social security number and paying a fifteen dollar fee." Id.

[372] *fn21 "Rap Sheets" are less readily available today than in days past, but this reflects a policy judgment about the appropriate balance between the defendant's interest in getting a new start and the interest of others who might find "Rap Sheet" information relevant to their decision making. See Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764-65 (1989) (observing federal and state statutory and regulatory limitations on access to "Rap Sheets"). It does not reflect a general understanding that the dissemination of "Rap Sheet" information by the government is additional punishment.

[373] While the Supreme Court recognized in Reporters Committee that "Rap Sheets" are protected under the privacy-for-law-enforcement-records exemption to the Freedom of Information Act, 5 U.S.C. Section(s) 552(b)(7)(C), such protection reflects a Congressional policy judgment, not federal Constitutional law. See id. at 762 n.13. The Court explained:

[374] The question of the statutory meaning of privacy under the FOIA is, of course, not the same as the question whether a tort action might lie for invasion of privacy or the question whether an individual's interest in privacy is protected by the Constitution. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (Constitution prohibits State from penalizing publication of name of deceased rape victim obtained from public records); Paul v. Davis, 424 U.S. 693, 712-714 (1976) (no constitutional privacy right affected by publication of name of arrested but untried shoplifter).

[375] Id.

[376] *fn22 Other examples are provided by the New Jersey statutes requiring public notice when an adult inmate is considered for parole and notice to victims upon a defendant's release from incarceration. See N.J.S.A. 30:4-123.48g & 123.45b(5); N.J.S.A. 52:4B-44b(21).

[377] *fn23 Reporters Committee, 489 U.S. at 749, does not call Paul's teaching into question. We do not agree with the Supreme Court of New Jersey's conclusion in Doe that the recognition in Reporters Committee of a statutory right to privacy for "Rap Sheets" under FOIA dictates that a federal Constitutional right to privacy is implicated by notification. See Doe, 662 A.2d at 410-11. As mentioned above, Reporters Committee noted the differences between "privacy" under FOIA and an "individual's interest in privacy" under the federal Constitution. 489 U.S. at 762 n.13.

[378] *fn24 As we explained in Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 688 n.1 (3d Cir. 1991), aff'd in part and rev'd in part, 505 U.S. 833 (1992):

[379] Government interference with personal rights within the scope of the life, liberty, or property umbrella of the Due Process Clauses must be justified by a legitimate state interest; government interference with a "fundamental right" may be justified only by the most important of state interests.

[380] *fn25 The Supreme Court has held that "[a]mong the historic liberties . . . protected [by the Constitution is] a right to be free from . . . unjustified [state] intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673 (1977). For citizens who are not in the custody of the state, however, this right does not include the right to state protection from private violence. See DeShaney v. Winnebago County Dep't of Soc. Services, 489 U.S. 189 (1989). The "state created danger" cases based upon this right to personal security do not recognize a right that is implicated here because they do not involve situations where the risk created is justified by the state's pursuit of a legitimate public interest. See, e.g., Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989).

[381] *fn26 Compare Tony L. v. Childers, 71 F.3d 1182 (6th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1834 (1996) (holding that state statutes which merely establish procedures and do not mandate any particular substantive result do not give rise to a state-created "liberty interest").

[382] *fn27 While it is clear that deprivation of a state created liberty interest triggers due process protection, and that a state created right to be free of physical restraint is such an interest, the scope of the phrase "liberty interest" as used in the context of the Due Process Clause has not been fully delineated. See, e.g., Paul, 424 U.S. at 708-09 (observing that deprivation of a state law right to obtain liquor in anonymity when combined with the stigma of defamation would implicate a state-created "liberty interest," while the stigma alone would not do so). The phrase "property interest" in this context has been broadly construed, however, to include contract rights, choses-in-action, and a right to state created benefits. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 807 (1985) (legal and equitable claims); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9-10 (1978) (utility service); Goss v. Lopez, 419 U.S. 565, 574 (1975) (school attendance); Perry v. Sindermann, 408 U.S. 593, 602 (1972) (employment contract). Indeed, "property interest" has been interpreted so as to extend procedural due process protection to virtually all rights that states will enforce in a court of law. With this background, we believe that the Supreme Court would interpret"liberty interest" in the context of the Due Process Clause to include a state created right to privacy like that recognized in Doe.

[383] *fn28 As we have noted, appellants also argue that the notice of a proposed notification cannot be dispensed with in emergency situations as the Supreme Court of New Jersey has suggested. We decline to address that issue for the same reason that we declined to do so in Artway--it is unripe. 81 F.3d at 1252; see Abbott Labs. v. Gardner, 387 U.S. 136 (1967). "The right to notice is not absolute;" instead, due process provides for a right to " `reasonably calculated' notice." Artway, 81 F.3d at 1252 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). "[T]he State cannot dispense with notice when that notice is possible and irreparable harm could result." 81 F.3d at 1252; see United States v. Raffoul, 826 F.2d 218, 224 (3d Cir. 1987).

[384] The Megan's Law standard for dispensing with notice, as articulated in Doe and the Guidelines, involves cases where it is "impossible as a practical matter" to give notice or to do so in a timely manner. 662 A.2d at 382; Guidelines at 17. None of the representative plaintiffs asserts that his notification issued absent notice; nor is there anything in the record indicating that New Jersey's prosecutors have ever dispensed with notice or plan to do so. The only indication we have as to what circumstances would meet the standard is the suggestion in the Guidelines that a prosecutor may apply for a court order to effect notification absent notice where she does not receive notice of the release of a sex offender until after the date of release or she can demonstrate that she made "every good faith effort" to serve a registrant who merely avoided service. Guidelines at 17-18. As in Artway, we simply do not have the necessary "factual matrix" against which to evaluate this standard. 81 F.3d at 1252.

[385] There is another consideration which, as it did in Artway, would prevent us from reaching the notice issue here--the Pullman abstention doctrine. Id. at 1252 n.12; see Railroad Comm'n v. Pullman, 312 U.S. 496 (1941). The New Jersey courts have yet to interpret the "impossible as a practical matter" standard, and "[t]o the extent state court interpretation would make the standard comport with due process, abstention would probably be appropriate even if the issue were ripe." 81 F.3d at 1252 n.12.

[386] *fn29 Because tier classification is a civil process, the deference due state criminal procedures, see, e.g., Cooper v. Oklahoma, ___ U.S. ___, 116 S.Ct. 1373, 1377 (1996), is not applicable here.

[387] *fn30 As the majority notes, Megan's Law was actually a series of bills enacted by the New Jersey legislature. Hereinafter, when I refer to Megan's Law, I refer only to those provisions requiring released sex offenders to register with law enforcement officials so that such officials may, in certain circumstances, carry out community notification as to the whereabouts of these offenders. These provisions are codified in the New Jersey Code of Criminal Justice at Section(s) 2C:7-1 through Section(s) 2C:7-11.

[388] *fn31 Were I to conduct a more extensive canvass of the extent to which the Supreme Court relies on history in constitutional cases, this opinion would become a veritable treatise. The Court's long line of media access cases, beginning with Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), which traces the history of open criminal trials from the days before the Norman Conquest, is but one example.

[389] *fn32 That the form of dissemination under Megan's Law (written notice) is different from the form of dissemination of the shaming punishments (public display of the offender) is immaterial. Public display in modern society simply would not accomplish the goals of notification; not all those "likely to encounter" the released offender would be notified by public display.

[390] *fn33 In a footnote, the majority mentions common procedures that provide for public notice that an inmate is being considered for parole or is being released from incarceration. Such measures are relatively modern and therefore are probably not appropriate historical analogues to the notification provisions, and I will not dwell on them any more than the majority does.

[391] *fn34 My analysis here mirrors that explained in an article describing the process of legal reasoning by analogy. See Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 923, 965 (1996). To quote from the author:

[392] [I]n order for an argument by analogy to be compelling . . . there must be sufficient warrant to believe that the presence in an "analogized" item of some particular characteristic or characteristics allows one to infer the presence in that item of some particular other characteristic.

[393] Id. (footnote omitted). In this case, we are attempting to determine which characteristics of notification will allow us to infer its objective purpose by examining analogues of notification that share these characteristics and whose purpose we know.

[394] *fn35 I rely here on the type of information released pursuant to the Attorney General's guidelines implementing notification. See N.J. Stat. Ann. Section(s) 2C:7-8(d) (1995). I assume that the guidelines accurately reflect the legislative purpose in this respect.

[395] *fn36 Contrary to the majority's assertions, there is no evidence of which I am aware that a colonial settlement would have known prior to the shaming itself of an offender's crime. I suspect that if the community was already aware of the crime, then shaming punishments would be unnecessarily duplicative.

[396] *fn37 In an interesting, perhaps ironic twist, the need for notification provisions arises because of the "anonymity afforded by modern society." Recent Legislation, 108 Harv. L. Rev. 787, 790 (1995) (discussing the Washington state sex offender notification statute). Piercing the veil of modern anonymity may serve remedial purposes, such as alerting the community to the risk that a convicted sex offender who resides nearby may re-offend, but it also may serve punitive purposes, such as providing the community a target for harassment.'

[397] *fn38 It is interesting to note that in recent years courts nationwide have returned to versions of the colonial shaming punishments. See Kahan, supra, at 631-34. Courts might require individuals to wear t-shirts or bracelets announcing their crime, to post placards on their houses or bumper stickers on their cars, to stand in public places wearing signs, or to apologize publicly to the community or their victims. See id. at 632-34. The actual, stated purpose of these measures is punitive; in that sense, they differ from Megan's Law. However, these measures suggest a shared cultural understanding, still prevalent in our society, that publicity concerning an individual's misdeeds can, and often is, intended to punish that individual.

[398] *fn39 The guidelines written to implement Megan's Law may be interpreted to warn against this very problem. They suggest that the law enforcement officials responsible for implementing the notification tailor such notification so that it reaches only those at risk. However, the examples provided by the guidelines suggest limitations on the type of recipient organizations, not on recipient individuals. Moreover, the guidelines stress that, notwithstanding this suggested tailoring, geographic proximity remains the critical factor in determining the scope of notification. Additionally, once the information is released, there is no practical means of limiting its further distribution. See Kansas v. Myers, 923 P.2d 1024, 1041 (Kan. 1996) ("The print or broadcast media could make it a practice of publishing the list [of released sex offenders] as often as they chose. Anyone could distribute leaflets containing the registered information anywhere and anytime.").

[399] *fn40 Because of my conclusion as to the history subpart of the Artway test, I need not examine in detail the other subparts of the objective purpose prong of the test. I mention them here only briefly. First, though it is a very close question, I doubt that the notification provisions of Megan's Law, as I have described their design, can be explained solely by a remedial purpose. Second, because, as I have discussed, the traditional understanding of historical analogues to the notification provisions and the design of Megan's Law evidence an objective retributive purpose, the third subpart of the objective purpose prong is not implicated. In other words, the third subpart of the objective purpose prong applies only "if the legislature did not intend a law to be retributive but did intend it to serve some mixture of deterrent and salutary [remedial] purposes." Artway, 81 F.3d at 1263. Here, such a retributive purpose existed.

[400] *fn41 Holding that the retroactive cancellation of early release credits earned by prison inmates violated the Ex Post Facto Clause, the Supreme Court examined the actual effect of the legislation at issue without concern for the stated legislative purpose. See Lynce v. Mathis, ___ U.S. ___, 117 S. Ct. 891, 896-98 (1997). In so doing, the Court reaffirmed its approach in California Department of Corrections v. Morales, ___ U.S. ___, 115 S. Ct. 1597 (1995), on which Artway based the effects prong of its test. See Lynce, 117 S. Ct. at 897.

[401] *fn42 I recognize that analysis of the notification provisions presents potentially difficult causation questions. For example, given that criminal history information is publicly available, it is not clear whether the harassment to which a released offender might be subject is caused by government notification or by the general availability of such information. It could well be that (and the record indicates instances in which) a community becomes aware of the presence of a released offender through the media. That said, the very fact that the state believes it important to notify persons about the location of a sex offender could both drive these media reports and spur local communities into action. In such event, notification could be characterized as a cause of these effects.

[402] *fn43 In California, where the information about released sex offenders can be accessed on CD-ROM, a released offender's car wasfirebombed. See Carolyne Zinko, Flyers Falsely Call Artist a Molester, S.F. Chron., July 14, 1997, at A1. Reaction to notification is often swift; another report from California notes that a neighborhood organized a protest within one day of receiving notification in order to drive the released offender from the community. See Bonnie Hayes & Frank Messina, Few Turn Out for Megan's Law Viewing in O.C., L.A. Times, July 2, 1997, at A1. Further, the community reaction does not easily wane. In New York, two neighbors of a sex offender protested in front of his house for months in an effort to force him to leave. See Today (NBC television broadcast, June 24, 1997). Even those who have endeavored to help reintegrate released sex offenders into the community have been thwarted; in some areas, local churches have been unable to assist offenders because individual congregants have made it impossible for the offenders to stay in the flock. See Lisa Richardson, Megan's Law is Put to Test as Towns Bounce Child Molesters, L.A. Times, May 25, 1997, at A3. In fact, so potent a weapon is notification, that there are reports of false notifications, presumably initiated by private individuals intent on carrying out a personal vendetta. See Zinko, supra, at A1.

[403] *fn44 In both De Veau v. Braisted, 363 U.S. 144 (1960) (plurality opinion), and Hawker v. New York, 170 U.S. 189 (1898), the Supreme Court held that the loss of certain employment opportunities did not constitute punishment. However, the loss of such opportunities was limited; in De Veau, the relevant statute forbade a felon from work as a union official, see De Veau, 363 U.S. at 145, and in Hawker, the relevant statute forbade a felon from practicing medicine, see Hawker, 170 U.S. at 190. In neither case did the statute limit all employment opportunities.

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]


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