W. KEITH WATKINS, Chief Judge.
Michael A. McGuire was born in Montgomery, Alabama, where he graduated from high school in 1971. Eventually, he left the community for many years. In 2010, at the age of 57, he and his wife returned to his hometown to be with his aging mother and other family in the area. Unbeknownst to Mr. McGuire, his arrival coincided with the 2011 promulgation of the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA"). Ala.Code § 15-20A-1 et seq.
Mr. McGuire has one criminal conviction, a serious one: In 1985, he raped and otherwise assaulted his 30-year-old girlfriend of five years. In May 1986, he was convicted of sexual assault in a Colorado state court. Mr. McGuire spent his next three years in prison and a fourth year on parole, successfully completing his prison sentence. He then had a multi-decade career as a hair stylist and jazz musician in the Washington, D.C. area. Prior to relocating to Montgomery in 2010, he had never been required to register as a sex offender. He was, in his brother's words, "a free American." (Trial Tr. I, at 14.)
After resettling in his hometown and on the advice of his brother, a local attorney, Mr. McGuire voluntarily visited the Montgomery Police Department to inquire about the scope of Alabama's sex-offender laws, hoping to confirm his belief that he would not be subject to the state's restrictions. That belief was erroneous by multiples. Mr. McGuire now lives homeless and unemployed under a bridge in his hometown. Pursuant to ASORCNA, he is required to register as a homeless sex offender in-person at both the City of Montgomery Police Department and the Montgomery County Sheriff's Department every week. In fact, for the rest of his life, he is subject to the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions non-existent elsewhere, at least in this form. He challenges ASORCNA as violating the Ex Post Facto Clause of the United States Constitution.
The court held a four-day bench trial and received post-trial briefing on the constitutional issue. This opinion constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.
Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and 2201. The parties do not contest personal jurisdiction or venue.
Mr. McGuire filed his complaint challenging ASORCNA on December 2, 2011. Over the course of litigation, Mr. McGuire amended his complaint four times. In its final iteration, Mr. McGuire's Third Amended Complaint brought claims under federal law (Counts I-VII) and state law (Counts VIII-IX). It alleged liability under 42 U.S.C. § 1983 for an assortment of
Motions to dismiss the Third Amended Complaint were filed by all Defendants as to each of Mr. McGuire's claims. After a thorough period of briefing, the court reviewed each of Mr. McGuire's twelve causes of action as to each of the six remaining Defendants. On March 29, 2013, 2013 WL 1336882, a Memorandum Opinion and Order was issued, granting in part and denying in part Defendants' motions to dismiss, ultimately leaving only Mr. McGuire's ex post facto challenge to proceed. The six remaining Defendants are the City of Montgomery, Montgomery Police Chief Ernest Finley in his official capacity, Montgomery Mayor Todd Strange in his official capacity, Montgomery County Sheriff Derrick Cunningham in his official capacity, Acting Director of the Alabama Department of Public Safety John Richardson in his official capacity, and Alabama Attorney General Luther Strange in his official capacity.
On March 31, 2014, through April 3, 2014, a four-day bench trial was held on Mr. McGuire's ex post facto challenge to ASORCNA. At the close of trial, all parties were ordered to submit additional briefing on certain topics. After considering the briefs filed in connection with pretrial motions, the post-trial briefs, and the arguments and evidence presented at trial, the court finds that judgment is due to be entered in favor of Mr. McGuire on his challenge to ASORCNA's provisions requiring dual weekly registration for in-town homeless registrants and dual travel permit applications for all in-town registrants, and in favor of Defendants on the remaining ex post facto claims.
On July 1, 2011, ASORCNA became effective and repealed all prior iterations of
ASORCNA restricts where a registrant may live and work,
Additionally, ASORCNA requires registrants who intend to be away from their county of residence for three or more consecutive days to "report such information in person immediately prior to leaving" and to complete a travel permit form providing "the dates of travel and temporary lodging information." Id. §§ 15-20A-15(a), (b). The permit form explains the duties of the registrant regarding travel, and registrants must sign the form, acknowledging their duties, or "the travel permit shall be denied." Id. § 15-20A-15(d). When a registrant obtains a permit, the registrant's local sheriff must "immediately notify local law enforcement" in the registrant's destination. Id. § 15-20A-15(e). Importantly, registrants who reside in municipalities ("in-town registrants") must obtain travel permits from both the local police and county sheriff. The forms for obtaining travel permits, which were developed by the Alabama Department of Public Safety, are virtually identical for the local police and the sheriff.
ASORCNA's provisions apply for life and without regard to the nature of the
ASORCNA's registration scheme requires offenders to register in-person four times a year, both with "[t]he sheriff of the county and the chief of police if the location subject to registration is within the corporate limits of any municipality." Id. §§ 15-20A-4, -10. For homeless offenders who reside within the city limits of any municipality, the registration requirement is enhanced to once a week with both law enforcement jurisdictions ("dual registration"). Id. §§ 15-20A-4(13), -12(b). Thus, in-town homeless offenders must register in-person a minimum of 112 times a year. The county and city forms to be completed by homeless registrants are substantively identical. Montgomery currently has three homeless offenders out of roughly 500 registrants.
Finally, the Legislature delegated rule-promulgating authority for ASORCNA to the Director of the Alabama Department of Public Safety. Id. § 15-20A-44. This accounts for the strong similarity in the ASORCNA forms used by local police departments and county sheriffs.
The Alabama Legislature made the following findings relevant to its intent in enacting the scheme:
Id. §§ 15-20A-2(1), (3), (5). With regard to the branding of one's sex-offender status on the ASORCNA-required driver's license or official identification card, the Legislature intended "a designation that enables law enforcement officers to identify the licensee as a sex offender" but did not specify the method of notice on the license. Id. § 15-20A-18.
Mr. McGuire turned 60 years old during the course of this trial. He is a sex offender under ASORCNA, and, as a result, he is required to register with the City of Montgomery Police Department and the Montgomery County Sheriff's Department on a regular basis. Mr. McGuire is one of more than 500 registered sex offenders residing in Montgomery County, over 430 of whom live within the Montgomery city limits.
Mr. McGuire's registry information has been available to the public via the Alabama and federal sex-offender registries since May of 2010. Additionally, pursuant to ASORCNA's community-notification provision, persons within the statute's prescribed proximity to Mr. McGuire's registered residence were notified by flyer in June of 2010 that Mr. McGuire is a registered sex offender. During each quarterly registration at the Montgomery Police Department and the Montgomery County Sheriff's Office, Mr. McGuire is supposed to pay a $10 fee. Due to his "homeless status," however, Mr. McGuire's fee has been waived. (Doc. # 251, at 40:12-14.)
Mr. McGuire is currently one of three homeless offenders in Montgomery County, and he lists his residence as being under a bridge in the City of Montgomery. Mr. McGuire's wife of eleven years is not homeless; she lives in the house that the couple rents from Mr. McGuire's brother. Because the house is not in an ASORCNA-compliant area, Mr. McGuire is prohibited from residing in the house with his wife. He may, however, stay in the house not more than two consecutive nights, not to exceed nine nights a month. Id. § 15-20A-11(e).
Mr. McGuire asked local law enforcement about the suitability of fifty to sixty
Because Mr. McGuire is homeless, he registers quarterly and weekly with both the Montgomery County Sheriff's Office and the Montgomery City Police Department. The two offices are located five miles apart. On occasion, Mr. McGuire has had to walk as far as twenty miles to register with both jurisdictions.
Before moving to Alabama in 2010, Mr. McGuire was employed as a hair stylist and musician. Since moving to Alabama, ASORCNA has prevented Mr. McGuire from accepting or applying for a number of jobs, including music-related engagements.
Mr. McGuire is subject to other ASORCNA requirements as well. For example, he has had to replace his driver's license with a new ASORCNA-compliant license. On the front of his new license is the inscription "CRIMINAL SEX OFFENDER" in red lettering. Mr. McGuire has also had to limit his travel—a hobby he enjoyed prior to moving to Alabama—because of the three-day travel permit requirement. Applying for the permit requires registration at two jurisdictions for all in-town offenders, homeless or not.
In challenging ASORCNA, Mr. McGuire brought this lawsuit against a number of individuals and governmental entities. The viability of his claims against each Defendant will be addressed in turn.
Mr. McGuire's § 1983 ex post facto claims for injunctive and declaratory relief remain pending against the City of Montgomery, the Mayor in his official capacity, and the Chief of Police in his official capacity. For the reasons that follow, the claims against the City, the Mayor, and the Chief of Police are due to be dismissed.
For purposes of § 1983, suits against the Mayor and the Chief of Police in their official capacities are suits against the City itself. See McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); see also Cooper v. Dillon, 403 F.3d 1208, 1215 (11th Cir.2005) (noting that a § 1983 suit against a municipal police chief is "the same as a suit against the municipality"). Because the City is also a defendant, the § 1983 ex post facto claims against the Mayor and Chief of Police in their official capacities are due to be dismissed as redundant.
For a city to be liable under § 1983, "the plaintiff has the burden to show that a deprivation of constitutional rights occurred as a result of an official government policy or custom." Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.2005) (defining "custom" and "policy"). "`Only those officials who have final policymaking authority may render the municipality liable under § 1983.'" Id. (quoting Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996)).
In Cooper, the Eleventh Circuit addressed whether a city could be held liable under § 1983 for a police chief's enforcement of an unconstitutional state statute. Id. at 1222. In that case, the police chief had ordered the arrest of the plaintiff, who was a newspaper publisher, for publishing news articles "disclosing . . . information he obtained as a participant in an internal investigation." Id. at 1213. The court determined that the state statute under which the publisher was arrested was "an unconstitutional abridgment of core First Amendment rights," id. at 1219, and that "state law demonstrate[d] that [the police chief] was the ultimate policymaker for
Unlike in Cooper, Mr. McGuire presents no evidence indicating that a City of Montgomery official has final policy-making authority over the provisions of ASORCNA. Rather, the Alabama Legislature delegated the interstitial policy-making function of ASORCNA to the Director of the Department of Public Safety. Additionally, no evidence has been offered indicating that any City official has discretionary authority over the promulgation of rules associated with ASORCNA, or that any such rules have been promulgated by the City. Because there is no evidence that the City has "consciously chosen [the methods in which ASORCNA has been implemented] from among various alternatives," City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), there has been no showing that any of the alleged actions in this case were a result of a city custom or policy. Accordingly, the City of Montgomery is due to be dismissed.
Mr. McGuire also seeks prospective injunctive and declaratory relief against the State Attorney General, the Montgomery County Sheriff, and the Alabama Department of Public Safety Director in their official capacities ("State Officials"). As explained in the September 9, 2013 Order (Doc. # 134), these are viable avenues of relief under § 1983. See generally Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir.1999) (The Eleventh Amendment, by application of the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), does not bar § 1983 official-capacity suits for "prospective equitable relief to end continuing violations of federal law."). Accordingly, Mr. McGuire's lawsuit proceeds only as to his § 1983 claims seeking to enjoin the State Officials
Mr. McGuire challenges ASORCNA's registration, notification, driver's license inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions. Of those challenges, the State
The right to travel is a fundamental right. United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) ("[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution."). Further, a plaintiff need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his exercise of constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Because Mr. McGuire's right to travel is deterred by ASORCNA's travel-permit requirement and corresponding risk of felony convictions, Mr. McGuire has standing to challenge the requirement.
As to employment, while it is true that Mr. McGuire is not currently looking for work, he stated that work in the form of musical engagements often "come[s] to [him]." (Doc. # 251, at 39:13.) There is no question that Mr. McGuire's musical employment has been and will continue to be negatively impacted by ASORCNA. In particular, Mr. McGuire proved that he continues to turn down musical performances because the performances are scheduled in venues located in non-compliant areas. (Doc. # 251, at 25:13-25.) The fact that Mr. McGuire has had to decline offers to work at venues in non-compliant areas confers standing for purposes of challenging ASORCNA's employment restrictions.
Finally, as to the registration-fee requirement, "[a]n allegation of future injury may suffice [for a plaintiff to have standing] if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Susan B. Anthony List v. Driehaus, ___ U.S. ___, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (internal quotations omitted). While Mr. McGuire is not paying the fee currently, he is exempt only because he is homeless. (Doc. # 251, at 40:12-14.) Regardless of whether this is a decision made by law enforcement or an adjudication of indigence by a judge, the risk that Mr. McGuire may lose his homeless or indigent status and thus be required to pay the fee is substantial enough to confer standing to challenge the registration-fee requirement. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1000-01, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (finding standing because respondents nursing home remained "free to determine independently that respondents' continued stay at current levels of care [was] not medically necessary," and based on analogous past decisions, the threat of such a decision was "quite realistic").
Accordingly, Mr. McGuire has standing to challenge ASORCNA's registration, notification, driver's license inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions.
Mr. McGuire's sole remaining claim is that ASORCNA violates the Ex Post Facto Clause of the United States Constitution. The Ex Post Facto Clause "forbids the Congress and the States to enact 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, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L.Ed. 356 (1866)). As the Supreme Court has explained, the Ex Post Facto Clause is but one expression of the "deeply rooted" jurisprudential "presumption against the retroactive application of new laws." Lynce v. Mathis, 519, U.S. 433, 439-40, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). This "limit[ation] on the sovereign's ability to use its lawmaking power to modify bargains it has made with its subjects" protects "not only the rich and the powerful, but also the indigent defendant engaged in negotiations that may lead to an acknowledgement of guilt and a suitable punishment." Id. at 440, 117 S.Ct. 891 (internal citation omitted). The protection afforded by the Ex Post Facto Clause is limited, however, as the Supreme Court has held that its prohibition "applies only to criminal laws, not to civil regulatory regimes." United States v. W.B.H., 664 F.3d 848, 852 (11th Cir.2011) (citing Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).
Because a civil regulatory regime is not subject to an ex post facto challenge, the issue is whether ASORCNA may fairly be characterized as criminal, imposing a retroactive punishment, or is more properly categorized as civil and non-punitive. Id. The framework for this inquiry is well settled. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (outlining the Court's two-step approach). First, a court must look to legislative intent. If it determines that "the intention of the legislature was to impose punishment, that ends the inquiry," and a plaintiff may proceed with the ex post facto challenge. Id. If, however, the legislature intended "to enact a regulatory scheme that is civil and nonpunitive," the court must proceed to step two and determine "whether the statutory scheme is `so punitive either in purpose or effect as to negate'" the Legislature's civil intent. Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (internal quotations and alterations omitted)).
To determine the intent of the Alabama Legislature in enacting ASORCNA, the court is to consider the statute's text and structure, as well as the "[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes."
First, just as the Supreme Court observed in Smith v. Doe — a leading case in which the Court analyzed whether Alaska's sex-offender legislation was criminal or civil—the Alabama Legislature "expressed the objective of the law in the statutory text itself." 538 U.S. at 93, 123 S.Ct. 1140 (recognizing that the Alaska Legislature expressed a clear civil intent when it spoke to sex offenders' high recidivism rates and identified public safety as the government's primary motivator). In ASORCNA's legislative findings section, the Legislature "declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish registrants but to protect the public and, most importantly, promote child safety." Ala.Code § 15-20A-2(5). And specifically with regard to homeless sex offenders, the statute notes that their increased "mobility" necessitates more frequent monitoring "for the protection of the public." Id. § 15-20A-2(3). Because the Alabama Legislature expressly disavowed a penal motivation and, instead, highlighted its concern for public safety,
Mr. McGuire argues that, based solely on the text of the statute, the Legislature's intent is, at most, ambiguous. As an example of one of ASORCNA's more criminal-like features, Mr. McGuire points out that it is codified in Alabama's criminal procedure code. Additionally, ASORCNA incorporates criminal penalties for enforcement purposes, which could indicate that the statute was intended as a criminal measure. The Court in Smith, however, faced similar statutory attributes it considered "open for debate" and still found that Alaska Legislature's purpose in enacting the statute was nonpunitive. Id. at 94, 123 S.Ct. 1140.
In Smith, the Court discussed how the notification provisions of Alaska's sex-offender statute were codified in the state's "Health, Safety, and Housing Code" while the registration provisions were codified in Alaska's criminal procedure code. 538 U.S. at 95, 123 S.Ct. 1140. It went on to note, however, that "[t]he location and labels of a statutory provision"
Here, while all of ASORCNA is codified within the criminal procedure code, Alabama's criminal procedure code contains many provisions similar to the nonpunitive provisions highlighted in Smith. Specifically, Alabama's criminal procedure code contains provisions for "disposing of recovered and seized property [Ala.Code § 15-5-50-65]. . . and laws governing actions for writs of habeas corpus [Id. § 15-21-1-34], which under [Alabama] law are `independent civil proceeding[s].'" Id.; see also Woods v. State, 264 Ala. 315, 87 So.2d 633, 636 (1956) ("It seems to be the general opinion that habeas corpus is a civil, as distinguished from a criminal, remedy or proceeding, regardless of whether the prisoner is detained under civil or criminal process."). Further, other provisions within the criminal procedure code do not involve criminal punishment, such as procedures for using audio-video communications during criminal pre-trial proceedings, Ala.Code § 15-26-1-6; laws protecting child victims and witnesses in prosecutions for sexual offenses and exploitations involving children, id. §§ 15-25-1-6, -30-40; and laws governing the rights of crime victims generally, id. §§ 15-23-1-23, -40-46, -60-84, -100-04. Thus, as in Smith, the codification of ASORCNA within the criminal procedure code "is not sufficient to support a conclusion that the legislative intent was punitive." 538 U.S. at 95, 123 S.Ct. 1140.
Additionally, ASORCNA's enforcement provisions do not support a conclusion that the Legislature's intent was punitive. No procedural safeguards associated with criminal law are included alongside ASORCNA's restrictions or requirements. Further, ASORCNA does not mandate any procedures, but rather vests the Alabama Department of Public Safety with the "authority to promulgate any rules as are necessary to implement and enforce" the Act. Ala.Code § 15-20A-44. Accordingly, the fact that ASORCNA relies on criminal penalties for the Act's enforcement does not, in and of itself, indicate a legislative intent to create a punitive scheme.
In light of the guidance provided by the Supreme Court in Smith, the court finds that the Alabama Legislature clearly expressed its nonpunitive intent and ASORCNA's other formal attributes do not sufficiently discount the deference that must be given to the Legislature's stated intent. As a result, the second step of the analysis must be examined.
If the analysis ended with the Legislature's stated intent, the legislative branch would have pitched a shutout to the judicial branch. But the Supreme Court has recognized for centuries that what something is called and what something actually is may be two different things. Just so, in double jeopardy and ex post facto law,
Admittedly, "[b]ecause we ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." W.B.H., 664 F.3d at 855 (emphasis in original) (quoting Smith, 538 U.S. at 92, 123 S.Ct. 1140). The clearest proof standard is a heavy burden to carry: "some evidence will not do; substantial evidence will not do; and a preponderance of the evidence will not do. `[O]nly the clearest proof' will do." Id. (quoting Smith, 538 U.S. at 92, 123 S.Ct. 1140).
Illustrating, however, that courts are not entirely shut out from an inquiry that goes beyond a legislature's stated intent, the Supreme Court in Smith applied the Mendoza-Martinez "guideposts." 538 U.S. at 97, 123 S.Ct. 1140 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). The Mendoza-Martinez factors, "which migrated into our ex post facto case law from double jeopardy jurisprudence," call on a court to analyze "whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose." Smith, 538 U.S. at 97, 123 S.Ct. 1140. These factors are only "guideposts" and are "neither exhaustive nor dispositive"; "[n]o one factor should be considered controlling as they `may often point in differing directions.'" Hudson v. United States, 522 U.S. 93, 101, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (quoting Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554). These factors are useful and will be applied in the following analysis.
As a preliminary matter, the court must determine the extent to which ASORCNA's effects may be analyzed. The parties have taken diametrically opposed stands on this point. Mr. McGuire advocates for the consideration of each of ASORCNA's effects, including those felt by only one or two offenders at most, while Defendants argue that ASORCNA's implementation (a term used, in this context, synonymously with "effects") may not be considered at all in light of the requirement that a court look only to the statute on its face.
As has been discussed, in Smith, the United States Supreme Court determined that the Alaska Sex Offender Registration Act did not violate the Ex Post Facto Clause of the Constitution.
There is little difference between implementation of the internet-dissemination scheme in Smith and the Department of Public Safety's implementation of the travel-permit and license-notification requirements under ASORCNA. First, both statutes provide a grant of regulatory authority to the State's Department of Public Safety. Id. at 96, 123 S.Ct. 1140 (stating that the Alaska Act "vest[ed] the authority to promulgate implementing regulations with the Alaska Department of Public Safety"); Ala.Code § 15-20A-44(c) ("The Director of the Department of Public Safety shall have the authority to promulgate any new rules as are necessary to implement and enforce [ASORCNA]."). Second, both Smith and the present analysis involve an examination of the Department of Public Safety's chosen means of implementing a provision within the statute. See Smith, 538 U.S. at 90, 123 S.Ct. 1140 (noting that the Alaska statute required certain information, including offenders' names and addresses, be made available to the public); Ala.Code § 15-20A-15 (establishing travel restrictions); id. § 15-20A-18 (establishing identification requirements). Based on the statutory delegation of regulatory authority and the specific provision in the statute under which the regulatory authority had been exercised, the Smith Court analyzed the
In contrast to the effects associated with the implementation of travel restrictions and license-notification requirements, the idiosyncratic effects
The Seling case signals why idiosyncratic effects cannot be used alone in upholding a challenge. In that case, the Court determined that a statute that had already been characterized as facially nonpunitive could not be rendered punitive solely by its application to a single individual. To hold otherwise, according to the Court, would be to "invite an end run around the [State] Supreme Court's [earlier] decision that the Act [was] civil." Id. at 264, 121 S.Ct. 727. Based on that analysis, it would be illogical to allow such a result in this case solely because Mr. McGuire presents the right set of idiosyncratic effects in ASORCNA's challenge before this court. If this were allowed, cases presenting idiosyncratic effects would have disparate results from those examining purely general effects.
That said, idiosyncratic effects have been used in the negative to bolster a finding that a statute does not violate the Ex Post Facto Clause. For example, the Supreme Court in Hendricks addressed the specific confinement to which the plaintiff in that case had been subjected by stating that, "[a]lthough the treatment program initially offered Hendricks may have seemed somewhat meager, it must be remembered that he was the first person committed under the Act." 521 U.S. at 367-68, 117 S.Ct. 2072. This statement acknowledged the idiosyncratic subpar treatment that the plaintiff received and cast the treatment as having only a minor impact on the overall analysis. Further, and as an additional example, the Third Circuit noted idiosyncratic effects in rejecting an ex post facto challenge to a sex offender registration scheme, stating that, "[a]lthough the record [in that case] reflect[ed] that personal injury and property damage from private violence ha[d] occurred, it also reflect[ed] that [those] occurrences [were] relatively rare." E.B. v. Verniero, 119 F.3d 1077, 1104 (3d Cir. 1997). By highlighting the idiosyncratic nature of specific persons' experiences, the Hendricks and Verniero courts provided additional support for rejecting the plaintiffs' ex post facto challenges.
The court finds that idiosyncratic effects may not be used alone to uphold or defeat Mr. McGuire's ex post facto challenge. Accordingly, the court will confine its consideration of such effects, e.g., the "zones
A related but distinct consideration is the proper scope and focus of the examination of effects. As Smith pointed out, "we must . . . examine . . . the statutory scheme. . . ." 538 U.S. at 92, 123 S.Ct. 1140 (emphasis added). This instruction is particularly important in the case of ASORCNA because, to put it bluntly, it is the most comprehensive scheme, by far, in the United States. It is unique and novel in scope. No other state combines in-person registration, community notification, driver's license branding, residency restrictions, employment restrictions, travel restrictions, association with related children restrictions, weekly registration for the homeless, dual registration for all offenders in municipalities, and dual weekly registration for all homeless offenders in municipalities (totaling up to 112 in-person registrations per year), undergirded by 115 felonious ways to violate the statutory scheme, life application, retroactive to infinity or eternity (whichever first occurs), and all of it (except very limited exceptions for relatively minor offenses) without risk assessments for general sex offenders (non-juvenile and non-predatory).
Alabama's scheme goes miles beyond the minimum federal requirements of the Sex Offender Registration Act ("SORNA"), recently reviewed in this Circuit in United States v. W.B.H. See 664 F.3d 848 (11th Cir. 2011). Many courts across the country have analyzed and ruled upon individual components that are included in Alabama's scheme, and in isolation, most have been upheld. But no court has ever been faced with analyzing in toto the general effects of a scheme this expansive.
Defendants objected to this approach. In fact, the State in particular objected to any trial on the facts: "[W]e believe this question is a purely legal one, not susceptible to courtroom fact-finding. . . . [W]e therefore object to holding a trial at all on the ground that it is unnecessary." (Trial Tr. I, at 18.) The court could find no controlling law holding that the "clearest proof" standard applies only to legislative facts. Because a burden of proof suggests evidence, and the court knowing of no way to gather facts about the general effects caused by the scheme on its face, nor a way to assess "how effects of the Act are felt by those subject to it . . .", Smith, 538 U.S. at 99-100, 123 S.Ct. 1140 (assessing the affirmative disability or restraint prong) (emphasis added), the objections of the State were overruled at trial.
The State also took the position at trial that the effects must be examined exclusively as to each provision individually, instead of cumulatively:
(Trial Tr. I, at 25-26.) The court was perplexed by the State's assertion that unlimited intersecting provisions and their effects would be constitutional. First, this position would effectively bar courts from truly analyzing an act's effects. What would there be for a court to do, then, but unquestioningly take the legislature at its word with regard to intent? Second, taken to its extreme, even daily double-registration of city-dwelling homeless offenders—totaling 730 in-person registrations a year per homeless offender—would be, under this analysis, perfectly constitutional. The argument ends in absurd results.
Wishing to avoid absurdity if at all possible, the court has settled on a blended analysis of the effects of ASORCNA. First, each of the relevant statutory provisions will be examined in light of the Mendoza-Martinez factors. Second, the scheme as a whole will be assessed for purpose and effects, taking into particular account its effect on homeless Alabama sex offenders. This is so because the Constitution deals in substance not shadows, the nature of things, not just the name of things.
With these analytical contours in mind, the court now turns to the Mendoza-Martinez guideposts.
Mr. McGuire argues that ASORCNA's requirements resemble various traditional forms of punishment. Each suggested similarity will be addressed in turn.
Mr. McGuire contends that ASORCNA's residency restrictions effectively create an "enormous zone of banishment." (Doc. # 256, at 9.) The Supreme Court in Smith recognized banishment as a traditional form of colonial punishment. 538 U.S. at 98, 123 S.Ct. 1140. Since then several courts have had the opportunity to explore how sex offender residency restrictions compare to the historical practice. See Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005) (differentiating residency restrictions from the practice of banishment); Wallace v. New York, 40 F.Supp.3d 278, 317-18
As Mr. McGuire has testified in this case, he is not barred from frequenting any part of the city during the day. (Doc. # 256, at 13.) Rather, the restrictions only limit the places in which an offender can establish a residence or apply for and accept employment. There is no complete exile from the City of Montgomery. or from any other location within Alabama. Thus, while Mr. McGuire is able to offer a troubling account of his inability to find viable housing, he cannot show that he has been the subject of banishment in its historical form.
Mr. McGuire next argues that two of ASORCNA's provisions resemble the traditional punishment of public shaming. First, Mr. McGuire asserts that by requiring the front of every registrant driver's license to be branded with the words "CRIMINAL SEX OFFENDER" in all capital, red letters, the State is subjecting registrants to "public embarrassment, humiliation, and shaming."
The red-lettered labelling of registrant driver's licenses is no doubt an aggressive provision. Mr. McGuire illustrated how the required red lettering on his driver's license leads to shame and embarrassment in ordinary, everyday encounters with the public:
(Trial Tr. III, at 35.) In fact, the only other red lettering that appears on an Alabama driver's license is the State's name.
However, important differences exist between ASORCNA's license-labelling requirement and the "scarlet-letter-type punishment" referenced by the Eleventh Circuit in W.B.H., 664 F.3d at 855. Offenders have some degree of control over when and where to present an identification, unlike those during colonial times who had their transgressions aired publicly at all times, without any power to contain or control the extent or timing of the humiliation. Thus, while there may be other constitutional concerns with requiring registrants to carry a branded license, the court cannot say that the license-labelling provision is closely analogous to the historical practice of public shaming.
Mr. McGuire also contends that ASORCNA's community-notification provisions effectively amount to public shaming. Both the Supreme Court and the Eleventh Circuit have assessed the use of online, sex-offender registries in light of the traditional practice of public shaming, and each found sufficient differences between the historical punishment and modern registry regimes. Smith, 538 U.S. at 98, 123 S.Ct. 1140 ("[T]he stigma of Alaska's Megan Laws results not from public display or ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public."); W.B.H., 664 F.3d at 855 ("The registries do not `stage[] a direct confrontation between the offender and the public.'"). Mr. McGuire, however, argues that ASORCNA far exceeds passive dissemination of truthful information, as authorized by Smith and W.B.H., because ASORCNA requires law-enforcement officers to notify every resident within a specific distance that a registrant has moved into the neighborhood, as well as every school and childcare facility in a three-mile radius of the registrant's residency. Mr. McGuire notes that alongside the notification, each applicable party is also provided his picture, address, and a physical description.
It is true that the Court in Smith assessed a community-notification scheme that existed entirely online, with interested residents needing to take the "initial step" to search out information on registered sex offenders via the state's website. In the case of ASORCNA, members of law enforcement are required to actively disseminate community-notification flyers to geographically applicable residences, schools, and childcare facilities. But, just as in Alaska, the stigma that results from ASORCNA's community-notification scheme flows from the "dissemination of accurate information about a criminal record, most of which is already public" and not from organized episodes of "face-to-face shaming." 538 U.S. at 98, 123 S.Ct. 1140. Additionally, the Court in W.B.H. expressly stated that "registries do not `stage[] direct confrontation between the offender and the public'" and the same is true of the dissemination of flyers. W.B.H., 664 F.3d at 855. Accordingly, because ASORCNA's community-notification flyers, like the registries in Smith and W.B.H., serve to inform the applicable public of truthful information in furtherance of public safety and do not initiate public displays of shaming, any comparison to the historical punishment of public shaming is attenuated.
Mr. McGuire also contends that the requirements imposed by ASORCNA resemble the traditional punishments of parole and probation. To support his assertion, Mr. McGuire relies on a single Ohio district court case, Mikaloff v. Walsh.
Mr. McGuire alleges that ASORCNA's requirements are equally analogous to parole and probation as the provision analyzed in Mikaloff. Specifically, he argues that ASORCNA gives Alabama's law enforcement veto power over where a sex offender may reside, requires registrants to maintain constant contact with law enforcement, provides for criminal punishment upon violation, and restricts employment and travel. Two important differences exist, however, between the residency restriction dissected in Mikaloff and ASORCNA's provisions. First, ASORCNA's residency restrictions do not create the risk that offenders will be "sentence[d] . . . to a life of transience" as Judge Gwin feared was possible in Mikaloff, 2007 WL 2572268, at *10. Unlike Ohio's residency restriction, ASORCNA explicitly states that "[c]hanges to property within 2,000 feet of a registered address of an adult sex offender which occur after the adult sex offender establishes residency shall not form the basis for finding that the adult sex offender is in violation" of the residency restrictions. Ala.Code § 15-20A-11(c). Second, while ASORCNA openly restricts a registrant's housing options and requires registrants to notify authorities of residential changes, no requirement exists that the offender must seek law-enforcement permission before making residency decisions. As a result, law enforcement is not given the same discretionary "veto power" that was described in Mikaloff.
Additionally, the Supreme Court provided some analytical assistance when it compared Alaska's registration scheme to probation and supervised release for the purpose of determining whether Alaska's statute imposed an affirmative restraint on sex offenders.
Lastly, Mr. McGuire asserts that ASORCNA's registration fees are similar to the traditional punishment of fines. For support, Mr. McGuire relies on Doe v. Raemisch, 895 F.Supp.2d 897 (E.D.Wisc.2013), in which a $100 annual registration fee was determined to be a punitive fine that violated the Ex Post Facto Clause. According to the court in that case, although the funds were assessed "to offset the costs of monitoring the offenders," that nonpunitive purpose did "not eliminate the penal aspect of the assessment," and "singl[ing] out individuals who have prior convictions for sexual assaults as the sole source of such funds [could] only be seen as punitive." Id. at 909.
The Seventh Circuit, however, reversed the district court on that point, stating that:
Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir.2014) (internal citations omitted). The Seventh Circuit went on note that "Wisconsin's $100 fee [was] the same as that of a neighboring state, Illinois, albeit higher than the fees charged by Idaho ($80) and Massachusetts ($75)." Id. Further, it stated that "[t]he state provides a service to the law-abiding public by maintaining a sex-offender registry, but there would be no service and hence no expense were there no sex offenders." Id. at 1135. Thus, because the registrants "are responsible for the expense, there is nothing punitive about requiring them to defray it." Id.
The Mueller court's reasoning is persuasive. Alabama assesses a $10 fee per quarterly registration, thus establishing a baseline fee of $40 per year. Ala.Code § 15-20A-22. Admittedly, if the registrant lives in a municipality, then the registrant will have to pay the fee to both the local police department and the sheriff's department, thus amounting to $80 per year. Id. And, as Mr. McGuire points out, if the registrant happens to work, live, and attend school at the same time in different
In summary, while several of ASORCNA's provisions share features with some of our nation's traditional forms of punishment, this analysis has indicated that important variances also exist between ASORCNA's provisions and historical punishments. Ultimately, no ASORCNA provision is sufficiently analogous to an early form of punishment. Thus, the first factor points to a finding that ASORCNA is non-punitive.
The second guidepost requires a court to "consider whether [an act] subjects [its challenger] to an `affirmative disability or restraint.'" Smith, 538 U.S. at 100, 123 S.Ct. 1140 (quoting Mendoza-Martinez, 372 U.S. at 168, 83 S.Ct. 554). At this stage, a court examines "how the effects of the [a]ct are felt by those subject to it." Id. at 100-01, 123 S.Ct. 1140. The Supreme Court has noted that, "[i]f the disability or restraint is minor and indirect, its effects are unlikely to be punitive." Id. at 101, 123 S.Ct. 1140.
When evaluating the effects of Alaska's act, the Supreme Court in Smith began by noting that Alaska's sex offenders were not physically restrained in any way, thereby distinguishing the statutory scheme from the "paradigmatic affirmative disability or restraint"—imprisonment. Id. In fact, the Court noted that the use of a public registry did not impose an affirmative restraint because it did not "restrain activities sex offenders may pursue" and instead left "them free to change jobs and residences." Id. Additionally, the act did not impose an affirmative disability in requiring registrants to provide periodic updates and notifications because there was nothing in the act's text that required the updates to be made in person. Id.
In W.B.H., the Eleventh Circuit evaluated SORNA's federal registration requirements in light of the guidance provided by the Supreme Court in Smith, and ultimately held that, as in Smith, SORNA "impose[d] only a minor and indirect disability or restraint on adult sex offenders." W.B.H., 664 F.3d at 856-57. Like Alaska's statute, the court noted that "SORNA does not prohibit changes, it only requires that changes be reported." Id. at 857. Further, the Eleventh Circuit expressly rejected the idea that Smith stood for the notion that in-person updates and notifications would amount to a per se affirmative disability. Id. Specifically, the court explained that "[a]ppearing in person may be more inconvenient" but the increased inconvenience did not make the requirement punitive. Id.
Mr. McGuire contends that ASORCNA's residency, employment, and travel restrictions, as well as its in-person registration requirements, go beyond the provisions analyzed in Smith and W.B.H. and impose affirmative disabilities or restraints on registrants.
While the Supreme Court in Smith noted that Alaska's requirements had not "led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred," that is not the case here. 538 U.S. at 100, 123 S.Ct. 1140. Rather, like the plaintiffs in Doe v. Miller, Mr. McGuire has shown that he would live with his wife and not under a bridge absent ASORCNA's residency restrictions. See 405 F.3d at 721. ("Although the [plaintiffs] did not present much evidence about housing within restricted areas that would have been available to them absent the statute, they did show that some sex offenders would have lived with spouses or parents in the restricted zones. . . ."). In Miller, the Eighth Circuit considered the degree of the restraint on the sex offenders' residency options to conclude that Iowa's statute did "impose an element of affirmative disability or restraint." Id.
Here, ASORCNA also bars offenders from living with most minors, including nieces and nephews, regardless of whether an offender's past crime involved children as victims. Moreover, Mr. McGuire testified that he has been forced to turn down employment at various venues because of their location within restricted zones.
To keep idiosyncratic effects in their proper perspective, not every registrant will feel every restraint of the statute in the same way as all other registrants. However, Mr. McGuire's experience is illustrative of the general effects of ASORCNA's scheme in its necessary operation. For example, no registrant can stay, even one night, in a residence with minor nieces or nephews or in the home of a child or parent that is located in a restricted area. It is therefore reasonable to conclude that most registrants have been forced to deem certain residential options off limits in light of ASORCNA. Similarly, every registrant is barred from accepting employment within 2,000 feet of a school or daycare. Accordingly, every registrant has had the number of potential employers diminished based on nothing more than geographic proximity.
As a result, the court finds that the residency, employment, and travel restrictions generally, as well as dual weekly registrations for in-town homeless registrants specifically, are affirmative disabilities and restraints, and thus this factor points in favor of finding those restrictions punitive.
In cases challenging sex offender regulations, "traditional aims of punishment" means almost exclusively the concepts of deterrence
(Trial Tr. III, at 152.) Mr. McGuire's expert, Dr. James J. Prescott, testified that being listed on a sex offender registry actually increases recidivism. (Trial Tr. I, at 138.)
The confusion in the academy (social sciences, criminology, and even economics and law) points to the unreliability, and perhaps falsity, of some prominent statements in high-profile cases:
Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of Criminal Laws that Have Swept the Country, 58 Buff. L.Rev. 1, 57-58 (2010) (internal citations and quotations omitted).
In any event, Mr. McGuire did not meet his high burden required to establish that ASORCNA promotes the traditional aims of punishment. A review of the specific arguments of the parties confirms that conclusion.
Mr. McGuire argues that "[o]ne of ASORCNA's key objectives is to deter crime" while the "ASORCNA residency and other restrictions promote the traditional aim of retribution." (Doc. # 171, at 47.) In particular, based on the statute's language, only ASORCNA's registration and notification requirements act as a deterrent. Thus, the fact that "ASORCNA imposes additional residency, employment, and travel restrictions on registrants indiscriminately" has the sole function of "exact[ing] justice on the unpopular class [of sex offenders]." (Doc. # 171, at 49 (emphasis in original).) Because the additional restrictions are indiscriminate and "do nothing to affect future conduct or solve problems," those restrictions are retributive. (Doc. # 171, at 49.) Moreover, Mr. McGuire argues that ASORCNA's lack of a risk assessment, lack of a time limit, and inclusion of 115 felonies evidence a retributive purpose. (Doc. # 171, at 20, 49.) Further, Mr. McGuire argues that the relief provisions in ASORCNA promote retribution because "every provision under which a registrant may seek relief requires engagement of the prosecuting attorney in the jurisdiction where the registrant's sex crime was adjudicated, and for which he became subject to the statute," and because "ASORCNA mandates the state contact the victim of the registrant's original crime" before granting relief, "despite the fact that ASORCNA prohibits registrants from any contact with his or her victim." (Doc. # 171, at 49-50.) Finally, "[r]egistrants. . . are punished in ways they never were before [under ASORCNA]—even worse than parole," because, for example, Mr. McGuire "is forbidden from living with his own nieces, a punishment not in place while he was on parole." (Doc. # 256, at 46.)
In response, the State argues that "the Legislature did not express a purpose of general deterrence as might motivate the passage of a criminal statute," but instead
Finally, the State contends that "McGuire would say that ASORCNA is retributive for the . . . reason that it regulates sex offenders as a single class, not based on the risk that they might individually pose." (Doc. # 167, at 43.) To the State, this anticipated argument is the opposite of Smith, where the plaintiff "argued that Alaska's law was retributive precisely because the length of the reporting requirement `appear[ed] to be measured by the extent of the wrongdoing, not by the extent of the risk posed.'" (Doc. # 167, at 43 (alteration in original) (quoting Smith, 538 U.S. at 102, 123 S.Ct. 1140).) The State notes that the Smith Court "rejected this argument, concluding that `broad categories [of sex offender classification,]. . . and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and [were therefore] consistent with the regulatory objective.'" (Doc. # 167, at 43 (alterations in original) (quoting Smith, 538 U.S. at 102, 123 S.Ct. 1140).) Thus, the State contends, "[a]rguments like this, of the `heads-I-win-tails-you-lose' variety, just underscore the importance of deferring to the legislature's stated purpose, and do not deserve to be taken seriously given their ease of manipulation." (Doc. # 167, at 43.)
The court finds that, to the extent there is some deterrent purpose in the statute, that deterrent purpose is similar to "[a]ny number of governmental programs [that] might deter crime without imposing punishment." Smith, 538 U.S. at 102, 123 S.Ct. 1140. Further, the court finds that Mr. McGuire has failed in his burden to prove that the restriction, felony, and relief provisions serve a retributive purpose.
As to deterrence, the potential that the registration and notification scheme under ASORCNA might deter the general population arises from the theoretical argument that a potential offender would avoid committing a crime because he or she did not wish to be subjected to the regulatory requirements of ASORCNA. However, this is precisely the general deterrent effect of any governmental regulatory program. See id. It is not possible to distinguish between this theoretical probability and the probability of deterrence discussed in Smith. Thus, the court finds that any general deterrent purpose of the statute is unremarkable in a regulatory scheme.
As to retribution, Mr. McGuire did not prove that the restriction, felony, and relief provisions of ASORCNA clearly serve a retributive purpose. Using the parties' definition of retribution, "`[r]etribution is vengeance for its own sake. It does not seek to affect future conduct or solve any problem except realizing justice.'" Mikaloff,
The court first finds that the restrictions and felony consequences placed on registrants by ASORCNA cannot be said to be "`vengeance for its own sake.'" Mikaloff, 2007 WL 2572268, at *11 (quoting Cook, 700 N.E.2d at 583). ASORCNA seeks to regulate offenders' interactions with society and reduce recidivism. Specifically, the Alabama Legislature enacted employment and residency restrictions to "further[] the primary governmental interest of protecting vulnerable populations, particularly children." Ala.Code § 15-20A-2(5). The felony provisions serve to ensure guidance with the restrictions so that the regulatory purpose will be achieved. Thus, the restrictions and felony provisions "`seek to affect future conduct [and] solve [the] problem'" of protecting vulnerable populations. Mikaloff, 2007 WL 2572268, at *11 (quoting Cook, 700 N.E.2d at 583).
The Legislature's finding that employment and residency restrictions help achieve these regulatory objectives by limiting the potential for isolated contact between offenders and vulnerable populations is due deference, especially in view of Mr. McGuire's heavy burden of proof. Further, the potential for Class C felonies encourages compliance. Thus, the restrictions and the felony provisions are consistent with the statute's regulatory objective and "are reasonably related to the danger of recidivism." Smith, 538 U.S. at 102, 123 S.Ct. 1140.
The court similarly finds that Mr. McGuire did not carry his burden to prove that ASORCNA's lifetime application and lack of any risk assessment are inconsistent with the statute's regulatory objective. The State made categorical determinations of how to regulate offenders. Although the risk of recidivism might be very low for an aged offender like Mr. McGuire whose only offense is nearly 30 years old, the Circuit has observed that, "a lower rate of recidivism is not the same thing as no recidivism." W.B.H., 664 F.3d at 860. Further, the categorical approach, which lacks a scienter requirement, suggests a non-retributive purpose. Hendricks, 521 U.S. at 362, 117 S.Ct. 2072. In light of the consequences attributable to sex-offender recidivism, the State's categorical approach has not been
Finally, the court rejects Mr. McGuire's argument that the statute's relief provisions evidence a retributive purpose. Mr. McGuire's argument attacks the relief provisions as being so strictly confined as to show that the State meant the restrictions to be retributive. First, the State made the choice to include relief provisions, thus including certain situations in which a registrant could be relieved of the restrictions. The State's choice in this regard does not evidence a traditional aim of punishment; rather, the opposite is true: A State bent solely on punishment would be disinclined to allow for such relief. Second, any retributive purpose associated with the strict limitations on relief "are reasonably related to the danger of recidivism." Smith, 538 U.S. at 102, 123 S.Ct. 1140. Indeed, one would necessarily question the efficacy of a regulatory regime that would make it easy for the regulated persons to escape the regulatory requirements. Here, the State enacted a number of relief provisions for various reasons, but the State also made those relief provisions narrow in order to retain the regulatory impact of the overall scheme. Thus, the court rejects Mr. McGuire's argument that the statute's relief provisions evidence a retributive purpose.
In sum, Mr. McGuire failed to establish by the clearest proof that the restriction, felony provisions, and relief provisions evidence a retributive purpose. Further, to the extent ASORCNA has a deterrent purpose, that purpose is similar to the purpose of "[a]ny number of governmental programs [that] might deter crime without imposing punishment." Smith, 538 U.S. at 102, 123 S.Ct. 1140. Therefore, this factor points to a finding that ASORCNA is non-punitive.
Whether the challenged provisions of an act have rational connections to the asserted nonpunitive purposes "is a `[m]ost significant' factor in [a court's] determination that the statute's effects are not punitive." Smith, 538 U.S. at 102, 123 S.Ct. 1140 (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)). Importantly, "[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive
Mr. McGuire argues that several of ASORCNA's most prohibitive restrictions not only lack a close fit to the nonpunitive aims expressed by Alabama's Legislature, but, in actuality, entirely fail to further the aim of protecting the public and children.
Further, the statute applies for life and does not include an individualized risk assessment. As a result, registrants who pose no discernable threat to public safety are subject to ASORCNA, notwithstanding evidence of post-conviction rehabilitation and subsequent years of non-offending. Mr. McGuire contends that such an extensive categorical approach harms public safety because it forces law enforcement to broadly distribute finite monitoring resources, leaving it unable to sufficiently focus on those who actually pose an ongoing risk. Lastly, Mr. McGuire takes issue with the dual registration scheme, arguing that such a duplicative process serves "no other purpose than embarrassment, humiliation, and shaming." (Doc. # 256, at 37.)
While Mr. McGuire highlights some very reasonable concerns, the court is unable to say that ASORCNA's provisions do not have a rational connection to the statute's nonpunitive purpose of increasing public safety. As an initial matter, the Supreme Court noted in Smith, that a state is capable
As to the employment and residency restrictions, Mr. McGuire has not carried his burden of proving that they are not rationally related to the aim of public safety. The argument that it is illogical for a registrant to be able to wander through restricted zones during the day while children are present but not to be able to sleep overnight or engage in employment in those areas, has some traction, but not enough. First, despite ultimately finding Ohio's sex offender residency restriction in violation of the Ex Post Facto Clause, the court in Mikaloff recognized that there was a rational purpose to the residency restriction because limiting where one spends his or her nights logically limits that individual's access to the children of that area. 2007 WL 2572268, at *12 ("The Court concludes that to restrict where an individual sleeps at night, even while it does not restrict where he or she spends her days, has some rational relation to restricting access or opportunity to children in those areas.").
The court finds that, generally, an in-person registration requirement has a rational connection to the stated nonpunitive purpose as well. As highlighted in W.B.H., registering in-person forces the offender to contact and engage with law-enforcement officers on a regular basis. See W.B.H., 664 F.3d at 857 ("The in-person requirements help law enforcement track sex offenders and ensure that the information provided is accurate."). It is rational to believe that requiring this recurring, in-person relationship with law enforcement would foster increased transparency and decrease the likelihood of recidivism. Additionally, the Legislature made a rational argument in favor of increasing law enforcement's contact with homeless registrants, noting that the shifting nature of those registrants' residences could rationally be expected to increase
Further, the license-notification requirement provided for on the face of the statute is also rationally related to public safety aims. A notification immediately alerts law-enforcement officials to the registrant's status without delay, again increasing transparency between registrants and law enforcement. That said, the Legislature did not specify how that provision would be implemented. In no event did the Legislature require the printing of "CRIMINAL SEX OFFENDER" in bold, red lettering across the face of the license. But because the Legislature specifically stated the intent of this provision is to notify law enforcement, the provision itself is not excessive.
The travel-permit requirement per se also has a rational connection to the statute's nonpunitive purpose. First, the travel-permit requirement encourages personal contact with law enforcement, thus satisfying the same rational objective as the in-person registration requirement. See W.B.H., 664 F.3d at 857 (citing United States v. Powers, 562 F.3d 1342, 1344 (11th Cir.2009), for the proposition that registration is rational because it allows law enforcement to track registrants who travel to different jurisdictions). Second, the travel-permit requirement is rational in that it provides for continuity of contact between jurisdictions, which in turn provides for effective monitoring. Third, the court rejects Mr. McGuire's argument that, "if a registrant were intending to commit a crime in another county, ASORCNA's travel permit would serve no barrier." (Doc. # 256, at 31.) Punishing the failure of a registrant to obtain a travel permit utilizes the same method of ensuring compliance as the rest of the statutory regime, and, as was discussed previously, the possibility that a registrant may take advantage of loopholes does not render the scheme irrational. Finally, there is a rational purpose for the imposition of a three-day requirement to receive a travel permit. As Mr. McGuire acknowledges, the three-day window effectively reduces the possibility of engaging in spontaneous travel. By preventing spontaneous travel, the Legislature decreases opportunities for concerns such as absconding.
Finally, Mr. McGuire has failed to carry his substantial burden to prove that quarterly double-registration for in-town registrants is irrational. As has been stated, in-person registration increases contact with law enforcement. Indeed, this was the Legislature's stated purpose for requiring in-person registration. Ala. Code § 15-20A-2(1) ("Frequent in-person registration maintains constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying, monitoring, and tracking sex offenders.").
Ultimately, Mr. McGuire fails to prove that ASORCNA's provisions do not have rational connections to the scheme's stated nonpunitive purpose. This "significant" guidepost weighs in favor of finding that ASORCNA generally is nonpunitive. However, Mr. McGuire was able to draw
The final Mendoza-Martinez guidepost requires the court to consider whether ASORCNA's provisions, in their necessary operation, are excessive with respect to their nonpunitive purposes. As a preliminary matter, ASORCNA's individual provisions represent single building blocks stacked to form the statutory scheme under which Alabama's sex offenders are regulated. Mr. McGuire is not merely subject to isolated provisions; rather, his life is controlled by each of ASORCNA's components operating in unison. The Legislature passed ASORCNA as a comprehensive scheme, so it is logical to consider the effects of that scheme in sum. Accordingly, consideration of ASORCNA's effects is not limited to the discrete effects of individual provisions as if they are operating in a vacuum. Both the Supreme Court in Smith and the Eleventh Circuit in W.B.H. considered the excessiveness factor in terms of the entire statutory scheme rather than in terms of each individual provision. See Smith, 538 U.S. at 104, 123 S.Ct. 1140 (analyzing the excessiveness of universal registration and notification of sex offenders without individualized risk assessments); W.B.H., 664 F.3d at 859-60 (evaluating SORNA in a similar manner); see also id. at 859 ("The final [Smith] guidepost directs us to consider whether the regulatory scheme is excessive with respect to its non-punitive purpose.") (emphasis added). And both Smith and W.B.H. were dealing with schemes with only a fraction of the features embodied in ASORCNA. Thus, the cumulative effects of ASORCNA's provisions will be examined.
"The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the non-punitive objective." Smith, 538 U.S. at 105, 123 S.Ct. 1140 (italics omitted). To be sure, the majority of ASORCNA's regulations and restrictions are not novel creations, having been incorporated into various state sex-offender schemes across the country. And when challenged, these shared provisions have generally withstood excessiveness inquiries. For example, in-person registration has been held to increase contact between sex offenders and police officers and has been deemed reasonable for that purpose. See W.B.H., 664 F.3d at 857 (citing Powers, 562 F.3d at 1344). Similarly, registration fees have been upheld, when used to defray the costs associated with maintaining a sex-offender regulatory regime. See Mueller, 740 F.3d at 1135. Residency restrictions, employment restrictions, and community-notification schemes have all been deemed individually to be reasonable measures for increasing public safety. See Smith, 538 U.S. at 99, 123 S.Ct. 1140; Miller, 405 F.3d at 723. Finally, placing the sex-offender designation in red lettering on the front of the license is not clearly excessive, though it is subject to serious arguments that it is retributive. Because the lettering alerts law enforcement and the general public to the registrant's status without delay or potential for error, it passes ex post facto muster. Individually, none of these measures is clearly excessive in light
But ASORCNA does not stop there. Rather, it supplements in-person registration, registration fees, residency and employment restrictions, and community-notification measures with additional provisions creating a scheme that regulates sex offenders far beyond the scheme in any other state. For example, excluding legislation aimed at sexually violent predators, no other state has a scheme whereby sex offenders are retroactively regulated for life through residency, employment, and travel restrictions. In fact, only one other state—Tennessee—employs residency, employment, and out-of-county travel restrictions, and it tempers the effects of these provisions, providing for partial retroactivity and allowing offenders who have successfully complied with the act for ten years to petition for termination of participation in the registration program. T.C.A. § 40-39-207. No other state requires dual registration—or dual travel permits—for in-town sex offenders, instead allowing registrants to report to any single local law enforcement agency—whether municipal or county. See, e.g., Colo.Rev.Stat. § 16-22-102(4.5); 730 Ill. Comp. Stat. 150/2(D); Kan. Stat. Ann. § 22-4902(m). Only five other states—Arizona, Delaware, Hawaii, Idaho, and South Carolina—join Alabama in applying sex-offender regulations retroactively for the entirety of a registrant's life, but not one of those five states imposes travel restrictions, and only one of the five imposes residency and employment restrictions. See Ariz.Rev.Stat. Ann. § 13-3821 et seq.; 11 Del.Code Ann. § 4120 et seq.; Haw.Rev.Stat. § 846E-1 et seq.; Idaho Code Ann. § 18-8301 et seq.; S.C.Code Ann. § 23-3-400 et seq.
ASORCNA is the nation's most comprehensive sex offender regulatory scheme; it is designed to enhance public safety, prevent recidivism, and to protect vulnerable populations. Such a regulatory scheme, by its nature, will have a greater effect in its sum than when each of the scheme's individual components is examined in isolation, but that in and of itself does not make the scheme's cumulative effects unreasonable. That is not to say, however, that the features that overlay the entire scheme—no risk assessment, lifetime application, retroactive application for all-time, felony enforcement by the gross, border-to-border (rather than parcel-to-parcel), Ala.Code § 15-20A-11(g), residential and employment restrictions, and the chosen method of printing "SEX OFFENDER" in red lettering on the face of driver's licenses—are entirely nonpunitive and non-retributive. These provisions are, especially when considered in toto, in excess of every other scheme operating across the country, and such a stark comparison highlights areas where ASORCNA's effects have a very real potential to exceed their nonpunitive benefits.
First, Mr. McGuire has shown that the provision requiring double, weekly registration for in-town homeless offenders—totaling up to 112 registrations in-person a year—is excessive. No credible reason
Second, Mr. McGuire has shown that the provision requiring the completion of two identical travel permit applications prior to any three-day or more trip outside an in-town registrant's county of residence is excessive. Again, no credible reason was given in support of this duplicative procedure. While the State could again point to increased communication with law enforcement, as was discussed above, this is an instance of highly diminished returns coupled with substantially increased burdens. Additionally, § 15-20A-15(e) already requires the sheriff in the registrant's county of residence (not the municipal jurisdiction) to "immediately notify local law enforcement in the county or the jurisdiction to which the" registrant will be traveling, so it would be logical to conclude that the sheriff could also inform any applicable municipal law enforcement entity of the impending travel once a singular permit is completed. Ala.Code § 15-20A-15(e). When considering the double travel permit requirement in light of the other burdens borne by those subject to ASORCNA and the absence of any increase in benefit to ASORCNA's state nonpunitive purpose, the requirement is excessive to the point of being punitive.
As to all other of ASORCNA's provisions, Mr. McGuire has not shown that the Legislature's chosen regulatory means, individually or cumulatively, are clearly excessive in relation to the statute's nonpunitive purposes, and this factor does not point to a finding that ASORCNA as a whole is so punitive in purpose or effect as to negate the Legislature's stated intent. This finding is entered with serious reservations as to some features (especially the red-lettered branding of the face of required identification), but is consistent with the court's understanding of deference due to the judgment of the Alabama Legislature in regulating sex offenders in Alabama, and the State's discretion in implementing the various provisions of the scheme.
Based on the analysis of the five most pertinent Mendoza-Martinez factors, the court finds that Mr. McGuire has not shown by the clearest proof that ASORCNA's scheme as a whole is so punitive either in purpose or effect as to negate the Legislature's stated nonpunitive intent. Mr. McGuire has met this burden, however, with respect to two of ASORCNA's individual requirements. Using the Mendoza-Martinez
Based on the foregoing, it is declared that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13). To clarify, the declaration's scope of relief is limited to invalidation of the dual-nature of ASORCNA's in-town homeless registration and travel permit application requirements. Defendants are capable of determining the appropriate situs for the remaining singular registration and travel permit application procedures.
In light of these constitutional infirmities, attention turns to matters of relief. These other matters are: (1) whether the unconstitutional requirements of ASORCNA may be severed, allowing the remainder of ASORCNA to remain in force; (2) whether declaratory relief, without an accompanying injunction, is a sufficient remedy; and (3) what is the proper scope of relief in accordance with principles undergirded by the Ex Post Facto Clause?
Severability is a matter of state law, and Alabama directs courts to "strive to uphold acts of the legislature." State ex rel. Pryor ex rel. Jeffers v. Martin, 735 So.2d 1156, 1158 (Ala.1999) (citing City of Birmingham v. Smith, 507 So.2d 1312, 1315 (Ala.1987)). Because the Alabama Legislature expressed its intention that ASORCNA's provisions be severable through the inclusion of a severability clause
As to whether injunctive relief should accompany declaratory relief, there is generally little to no practical difference between the awarding of declaratory relief as opposed to injunctive relief. Wooley v. Maynard, 430 U.S. 705, 711-12, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Accordingly, a court generally will "not enjoin the enforcement of a criminal statute even though unconstitutional." Id. Here, the court is confident that state officials will abide by the judgment of this court declaring that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it
Finally, the relief provided does not extend to sex offenders convicted after the passage of ASORCNA in 2011. While the State attempts to argue that ASORCNA is a mere reconfiguration or re-enactment of Alabama's prior sex-offender regulatory scheme—the Alabama Community Notification Act ("ACNA")—and that relief should be limited to those convicted prior to 1996, such an argument is disingenuous in that ASORCNA's revisions to the ACNA were so extensive and far-reaching as to relegate the prior statute to mere irrelevance. For numerous reasons scattered throughout this opinion, ASORCNA is far more than a mere reconfiguration of the prior scheme.
For the foregoing reasons, it is ORDERED and DECLARED that ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by § 15-20A-12(b) in conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by § 15-20A-15 in conjunction with § 15-20A-4(13). It is further ORDERED that the Attorney General's oral Motion to Strike and Defendants' oral Motions for Judgment as a Matter of Law are DENIED AS MOOT.
ASORCNA also prohibits registrants from working or volunteering "at any school, childcare facility, or mobile vending business that provides services primarily to children, or any other business or organization that provides services primarily to children." Id. § 15-20A-13(a). Additionally, no registrant may "apply for, accept or maintain employment or volunteer for any employment or vocation" "within 2,000 feet of the property on which a school or childcare facility is located" or "within 500 feet of a playground, park, athletic field or facility, or any other business having a principal purpose of caring for, educating, or entertaining minors." Id. § 15-20A-13(c). The employment provisions—like most of the residency restrictions outlined above—apply with equal force regardless of whether the registrant's former victim was a minor.
