National Assoc. For Rational Sexual Offense Laws v. Joshua Stein ( 2024 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-2040
NATIONAL ASSOCIATION FOR RATIONAL SEXUAL OFFENSE LAWS; NC
RSOL; JOHN DOE 1; JOHN DOE 2,
Plaintiffs − Appellants,
v.
ATTORNEY GENERAL JOSHUA STEIN; DISTRICT ATTORNEY LORRIN
FREEMAN; DISTRICT ATTORNEY SEAN BOONE; DISTRICT ATTORNEY
REECE SAUNDERS,
Defendants – Appellees.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:17−cv−00053−LCB−JLW)
Argued: May 9, 2024 Decided: August 9, 2024
Before DIAZ, Chief Judge, and NIEMEYER and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Chief Judge Diaz wrote the opinion in which Judge
Niemeyer and Judge Richardson joined.
ARGUED: Paul Moore Dubbeling, P.M. DUBBELING, PLLC, Chapel Hill, North
Carolina, for Appellant. Ryan Y. Park, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Joshua H. Stein, Attorney
General, Lindsay Vance Smith, Deputy Solicitor General, Mary Elizabeth D. Reed,
Solicitor General Fellow, Joseph Finarelli, Special Deputy Attorney General, Tamika L.
Henderson, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
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JUSTICE, Raleigh, North Carolina, for Appellees.
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DIAZ, Chief Judge:
Plaintiffs challenge the constitutionality of North Carolina’s sex offender
registration statute under the Ex Post Facto Clause of Article I, Section 10, Clause 1 of the
Constitution, which prohibits the retroactive application of any new punishment for a crime
committed in the past. In its current form, the law requires that qualifying offenders report
certain information to their county sheriff, and limits where they can live, work, and visit.
After a bench trial, the district court found that the law was nonpunitive and thus
consistent with the Ex Post Facto Clause. We agree and affirm the district court’s
judgment.
I.
A.
Like all other states and the federal government, North Carolina has enacted a sex
offender registration statute that imposes various obligations and restrictions on people
convicted of certain crimes. N.C. Gen. Stat. § 14-208.5 et seq. The statute requires that
qualifying offenders provide (and regularly update) state law enforcement with certain
information. It also restricts where registrants can work, live, and visit. Though we need
not consider each individual aspect of this complex law, we highlight its contours and
major restrictions.
The registration statute generally applies to all offenders who have been convicted
of “an offense against a minor, a sexually violent offense,” or who attempt to commit such
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an offense. Id. §§ 14-208.6(4), 14-208.7. On top of that, it applies to a handful of other
specific offenses. Id. §§ 14-208.6(4)(d)–(f), 14-208.7.
The statute requires that qualifying offenders provide to their county sheriff certain
personal information, including their name, address, date of birth, physical characteristics,
and details of their conviction. Id. § 14-208.7(a)-(b). Some of this information becomes
available to the public. See id. § 14-208.10(a). Law enforcement will also take registrants’
photograph and fingerprints. Id. § 14-208.7(b)(3)–(4). Certain changes to registrants’
information must be reported, in person, to law enforcement. Id. § 14-208.9. Registrants
must also semiannually verify their information by returning a form, in person, within three
business days of receiving it from the State. Id. § 14-208.9A(a). And the county sheriff
may, at any time, “attempt to verify” a registrant’s address. Id. § 14-208.9A(b).
Beyond these information requirements, the statute broadly prohibits registrants
from working in roles involving supervision of minors, id. § 14-208.17, as well as from a
handful of specific roles that may involve interacting with minors, such as driving a school
bus or commercial passenger vehicle, or working in emergency medical services, see id.
§§ 14-208.19A, 131E-159(h).
Registrants may not knowingly reside within 1,000 feet of a school or child care
center. Id. § 14-208.16(a). Most registrants can’t knowingly visit any place “intended
primarily” for the use or care of minors, such as schools or playgrounds, id. 14-
208.18(a)(1), and some are restricted from being within 300 feet of any such place when
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it’s located within an area not intended for such use (e.g., malls), id. § 14-208.18(a)(2). 1
And most can’t visit any place that “minors frequently congregate” when minors are
present, such as libraries, parks, and pools. Id. § 14-208.18(a)(3).
But these restrictions aren’t without exception. Registrants may live within 1,000
feet of a school or child care center that opens after they have established residency. Id.
§ 14-208.16(d). If they have children, they may go on school property for meetings with
school personnel in some cases. Id. § 14-208.18(d). And they can visit any place that
might otherwise be prohibited in order to vote. Id. § 14-208.18(e).
The statute’s requirements generally apply for thirty years, id. § 14-208.7(a), but
offenders can petition to be removed from the registry after ten years, id. §§ 14-208.7(a),
14-208.12A(a). Those convicted of certain crimes, however, remain subject to the
registration requirements for life unless their conviction is vacated or pardoned. Id. §§ 14-
208.23, 14-208.6C.
The failure to comply with many of the statute’s requirements is a felony. E.g., id.
§§ 14-208.11(a), 14-208.16(f), 14-208.17(c), 14-208.18(h).
B.
Plaintiffs are two nonprofit corporations—the National Association for Rational
Sex Offense Laws (“NARSOL”) and North Carolinians for Rational Sex Offense Laws
(“NC RSOL”). Both advocate for reform of sex offense registries on behalf of their
1
The latter restriction doesn’t apply to those whose offenses didn’t involve a minor
and who havn’t otherwise been found by a court to be a danger to minors. See id. § 14-
208(c)(2).
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members, who are qualifying registrants. Along with an individual registrant, 2 they filed
suit against the North Carolina Attorney General and three District Attorneys under 42
U.S.C. § 1983, asserting a facial challenge to the constitutionality of North Carolina’s sex
offender registry statute. 3 Because the statute has been amended over time, and some of
the major restrictions apply retroactively, Plaintiffs assert that certain of these restrictions
violate the Ex Post Facto Clause and seek to bar their retroactive application. 4
C.
The district court held a four-day bench trial during which Plaintiffs presented
evidence about the recidivism rates of sex offenders, the difficulties they face in finding
housing and employment, and the burdens that the law’s restrictions impose on their lives.
2
The individual registrant has since been removed from the registry, and the parties
agree that his claim is moot.
3
The parties dispute the standard that applies to facial challenges. The State insists
that Plaintiffs must show that “no set of circumstances exist under which the [statute]
would be valid,” Appellees’ Br. at 17 (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008)), while Plaintiffs suggest that the question is
merely whether the statute “passes the relevant constitutional test,”—here, the test
articulated in Smith. Reply Br. at 7–8. We need not reach this issue as Plaintiffs’ claims
fail even under the less demanding approach.
4
The complaint seeks to bar retroactive application of a handful of specific
amendments. J.A. 39–40; Appellees’ Br. at 9–10 (describing amendments). Because the
parties’ briefing discusses these amendments and the rest of the law collectively, we do the
same. But we express no view on whether amendments not challenged in the complaint
may be applied retroactively. And because they weren’t presented in Plaintiffs’ briefing
to the district court, we decline to consider the handful of provisions Plaintiffs identify that
were enacted after the filing of the complaint. Appellants’ Br. at 2 (collecting
amendments).
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After trial, the district court made findings of fact and conclusions of law. Applying
the framework set out in Smith v. Doe, 538 U.S. 84 (2003), the district court first considered
whether the legislature intended to enact a civil, nonpunitive scheme. See J.A. 113–15.
Finding that it did, the court then addressed whether the effects of the statute were so
punitive as to override the legislature’s intent and render the scheme itself punitive. J.A.
115–31. Because Plaintiffs failed to show by the “clearest proof” that the effects were
sufficiently punitive, the court concluded that retroactive application of the challenged
amendments was consistent with the Ex Post Facto Clause. J.A. 131.
Plaintiffs appeal that order.
II.
We review the district court’s factual findings for clear error and conclusions of law
de novo. Harrell v. DeLuca, 97 F.4th 180, 189 (4th Cir. 2024).
The Ex Post Facto Clause “forbids the application of any new punitive measure to
a crime already consummated.” Kansas v. Hendricks, 521 U.S. 346, 370 (1997) (quoting
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 505 (1995)). To determine whether a
challenged law “impose[s] punishment,” id., the Supreme Court has developed a two-
pronged inquiry, see Smith, 528 U.S. at 92.
First, we consider “whether the legislature meant the statute to establish ‘civil’
proceedings.” Id. (quoting Hendricks, 521 U.S. at 361). If not, and the “intention of the
legislature was to impose punishment, that ends the inquiry.” Id. But if the legislature
intended to “enact a regulatory scheme that is civil and nonpunitive,” we proceed to the
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second step. Id. There, we ask whether the statute is “so punitive either in purpose or
effect as to negate the State’s intention to deem it civil.” Id. (cleaned up) (quoting
Hendricks, 521 U.S. at 361). But because we “ordinarily defer to the legislature’s stated
intent, only the clearest proof will suffice to override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty.” Id. (cleaned up) (citations
omitted).
A.
At Smith’s first step, we consider the legislature’s intent as expressed in the text.
“Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory
construction.’” Id. (quoting Hendricks, 521 U.S. at 361). We examine “whether the
legislature . . . indicated either expressly or impliedly” its intent, Smith, 538 U.S. at 93(quoting Hudson v. United States, 522 U.S. 93, 99 (1997)), and afford “considerable
deference” to the intent as stated, id. at 93.
The North Carolina legislature has made express that the purpose of its enactment
is to protect public safety:
Therefore, it is the purpose of this Article to assist law enforcement agencies’
efforts to protect communities by requiring persons who are convicted of sex
offenses or of certain other offenses committed against minors to register
with law enforcement agencies, to require the exchange of relevant
information about those offenders among law enforcement agencies, and to
authorize the access to necessary and relevant information about those
offenders to others as provided in this Article.
N.C. Gen. Stat. § 14-208.5. The same section makes various other references to the
“protection of the public,” “public safety and welfare,” and “protect[ing] communities.”
Id. These express statements indicate that the legislature intended the registry to be a civil,
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nonpunitive scheme. See Smith, 538 U.S. at 93 (finding that similar statutory provisions
supported conclusion that Alaska registration statute was nonpunitive); United States v.
Under Seal, 709 F.3d 257, 263–64 (4th Cir. 2013) (same for federal statute); Doe v. Settle,
24 F.4th 932, 946–47 (4th Cir. 2022) (same for Virginia statute). 5 We owe “considerable
deference” to this stated intent. Smith, 538 U.S. at 92–93.
None of Plaintiffs’ contrary arguments “shift our reading of the statutory purpose.”
See Settle, 24 F.4th at 947.
Plaintiffs contend that the public safety rationale isn’t strong evidence of the
legislature’s intent given that public safety is the “general purpose behind all laws.”
Appellants’ Br. at 22. But we and the Supreme Court have nevertheless found similar
rationales to be indicative of nonpunitive intent. Settle, 24 F.4th at 946–47; Smith, 538
U.S. at 93.
And Smith tells us that’s true despite the connection between public safety and
criminal law. There, the Court credited the stated public safety rationale even though it
was also “consistent with the purposes” of criminal law because “the State’s pursuit of it
in a regulatory scheme does not make the objective punitive.” 538 U.S. at 94; accord
Under Seal, 709 F.3d at 264 & n.3 (explaining that the statutory purpose of protecting the
public supported a finding that the statute was not punitive despite the fact that such a goal
5
Settle involved a claim that the Virginia registry violated the Eighth Amendment’s
prohibition on cruel and unusual punishments. 24 F.4th at 945. But we recognized that,
in determining whether something amounts to “punishment” for purposes of the Eighth
Amendment, Smith’s two-prong test applies. Id. at 945 n.11.
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“might also be consistent with the purposes of criminal justice”); Settle, 24 F.4th at 946
(same).
So these cases teach that the breadth of the stated purpose is no reason to doubt the
legislature’s sincerity.
Nor do we agree with Plaintiffs’ that the stated public safety purpose applies only
to the statute as originally enacted and not its amendments. Appellants’ Br. at 22. It’s true
that the statutory purpose section was enacted before many of the amendments that make
the scheme what it is today. But by its terms, the provision announces the purposes of “this
Article” and thus applies to the entire statute. N.C. Gen Stat. § 14-208.5. That the General
Assembly amended the registry program without also amending Section 14-208.5 shows
that it understood the amendments to be consistent with the already-stated purpose.
We credited an even more attenuated statutory purpose in Settle. There, we noted
that Virginia’s registration statute was originally codified within Virginia’s criminal code
and lacked a statutory purpose. Settle, 24 F.4th at 947. After Smith was decided, Virginia
moved parts of the statute out of the criminal code and added a provision announcing that
the purpose of the law was to protect the public. See id. at 946–47. Still, we refused to
doubt the sincerity of the legislature’s statement of the law’s purpose. Id. at 947 (noting
that although a “cynical mind might read this history as gamesmanship, . . . we read this as
more evidence that Virginia has no punitive intent and simply wanted to be clear about it”).
Thus, Settle offers another reason to presume that the North Carolina legislature meant
what it said in announcing the law’s purpose.
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Nor do the statute’s “[o]ther formal attributes” cast doubt on the legislature’s stated
purpose. See Smith, 538 U.S. at 94.
At the outset, we note that the registry’s administration by law enforcement is
irrelevant. That was true of the statutes in Smith and Settle. See Smith, 538 U.S. at 90;
Settle, 24 F.4th at 947.
Nor are we moved by the fact that the registration statute is codified in North
Carolina’s criminal code. N.C. Gen. Stat. § 14-208.5 et seq. Smith acknowledged that
although probative, the partial placement of the statute in the state’s criminal code wasn’t
dispositive. See 538 U.S. at 94–95. And Smith relied on the fact that the state’s criminal
code “contain[ed] many provisions that do not involve criminal punishment,” including
“laws protecting the confidentiality of victims and witnesses” and “laws governing civil
postconviction actions.” Id. at 95.
Although the North Carolina statute is codified entirely within the state’s criminal
code, that code similarly contains several nonpunitive provisions. E.g., N.C. Gen. Stat.
§ 14-43.18 (creating a civil cause of action for human trafficking victims); id. § 14-43.20(c)
(authorizing funds and services for human trafficking victims); id. § 14-190.5A(g)
(creating a civil cause of action for disclosure of private images). Thus, as in Smith, the
inclusion of these nonpunitive provisions suggests that the placement of the registration
statute in the criminal code doesn’t necessarily render it punitive. See Smith, 538 U.S. at
94–95; cf. McGuire v. Marshall, 50 F.4th 986, 1006 (11th Cir. 2022) (per curiam) (finding
full codification of a registry program in a state’s criminal code insufficient to overcome
the non-punitive statutory purpose).
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Next, Plaintiffs emphasize that registration is a mandatory condition of probation
and supervised release. Again, Smith controls. There, the Court considered the relevance
of a provision in the state’s criminal code requiring that, upon acceptance of a plea and
entry of judgment, the judge inform criminal defendants of their obligation to register and
include the requirements in the judgment. 538 U.S. at 95. But far from finding this
indicative of punitive intent, the Court explained that it was merely an “effective” way to
inform qualifying offenders of the “civil consequences of their criminal conduct.” Id. at
95–96.
So too here. The registration statute requires that qualifying offenders register
independently from the mandatory conditions imposed as part of their criminal judgments.
N.C. Gen. Stat. § 14-208.7(a) (“A person who . . . has a reportable conviction shall be
required to maintain registration with the sheriff . . . .”). That it’s also included as a
mandatory condition of release merely reflects the most efficient means of notifying
qualifying offenders of their obligations. Smith, 538 U.S at 95–96.
Finally, as an “objective indica[tion]” that the statute isn’t meant to be civil,
Plaintiffs note that it doesn’t always apply retroactively. 6 Appellants’ Br. at 22–23. By
this, Plaintiffs suggest that the legislature wasn’t really focused on protecting the public
Although many of the statute’s amendments do apply retroactively (thus giving
6
rise to this Ex Post Facto challenge), when the legislature has added new qualifying
offenses, it has done so only prospectively. E.g., Act of July 17, 2004, 2004 N.C. Sess.
Laws 109 (expanding the definition of a qualifying “[r]eportable conviction” but applying
the new definition only to offenses committed after a certain effective date).
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because, if it were, it would have “reach[ed] back to register persons previously convicted”
of newly qualifying offenses. See id. at 22 (cleaned up).
But that the statute could have gone even further is no reason to doubt the
legislature’s stated purpose. Cf. Smith, 538 U.S. at 103 (“A statute is not deemed punitive
simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to
advance.”). That’s because “[l]egislation is . . . the art of compromise,” Henson v.
Santander Consumer USA Inc., 582 U.S. 79, 89 (2017), and no statute “pursues its stated
purpose at all costs,” id. (quoting Rodrigues v. United States, 480 U.S. 522, 526 (1987)).
Indeed, there may be good policy reasons why the legislature has chosen not to apply the
statute to offenders whose crimes were previously ineligible—the most obvious being that
it may be difficult to track down and notify such offenders of their newfound obligations.
In sum, we take the legislature at its express word that it intended to create a civil,
nonpunitive regime. So we must proceed to Smith’s second step.
B.
Since we conclude that the legislature intended to create a civil, nonpunitive regime,
Plaintiffs can prevail only by showing that the law’s punitive effect is “so overwhelming
that it negates the State’s nonpunitive intentions.” Settle, 24 F.4th at 946. Though neither
“exhaustive nor dispositive,” this inquiry generally asks whether the registration statute
(1) has a rational connection to a nonpunitive purpose; (2) is excessive with respect to its
purposes; (3) has been regarded in our history and traditions as punishment; (4) imposes
an affirmative disability or restraint; and (5) promotes the traditional aims of punishment.
Smith, 538 U.S. at 97 (quoting United States v. Ward, 448 U.S. 242, 249 (1980)). Despite
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some overlap between them, we “consider each of these factors in turn and determine
whether the sum provides the ‘clearest proof’ that the registry is punitive in effect.” Settle,
24 F.4th at 948 (quoting Smith, 538 U.S. at 105).
1.
First, we consider whether the statute has a “rational connection to a nonpunitive
purpose.” Smith, 538 U.S. at 87. This is the “most significant factor” in our analysis, id.
at 102 (cleaned up) (citation omitted), and it easily favors the State. “Public safety is a
quintessentially legitimate justification,” and sex offender registries are “no doubt
connected to that goal.” Settle, 24 F.4th at 948.
Resisting this conclusion, Plaintiffs suggest that the statute doesn’t advance public
safety, Appellants’ Br. at 24–25, and may actually increase recidivism, see Reply Br. at
14–15. But the statute need not have a “close or perfect fit with the nonpunitive aims it
seeks to advance.” Smith, 538 U.S. at 103. In Settle, we acknowledged that some courts
have suggested that registration statutes may increase recidivism, but noted that the public
safety justification was nevertheless rational because the Virginia legislature “is free to
disagree with that empirical prediction or pursue other goals like investigatory efficiency.”
24 F.4th at 948. The same holds true here.
Plaintiffs also claim that the legislature didn’t rely on any “objective evidence” that
the statute would increase public safety. Appellants’ Br. at 25. But even assuming that’s
true, it’s irrelevant. States are free to legislate “based on rational speculation unsupported
by evidence or empirical data.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993);
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see also Settle, 24 F.4th at 948. So the legislature need not have been motivated by specific
evidence.
Thus, the registration statute is rationally connected to a nonpunitive purpose. And
“[b]ecause this factor favors [the State] and because it is the most important factor, this is
strong evidence that the law is nonpunitive in effect.” Settle, 24 F.4th at 949.
2.
Next, we assess whether the statute is “excessive with respect to [its] purpose.”
Smith, 538 U.S. at 97. This is “not an exercise in determining whether the legislature has
made the best choice possible to address the problem it seeks to remedy.” Id. at 105.
Rather, we ask only whether the legislature’s choice was “reasonable in light of the
nonpunitive objective.” Id. This inquiry is “reminiscent of the rational basis test”
addressed by the first factor. See Settle, 24 F.4th at 949.
Plaintiffs contend that the statute is excessive with respect to its public safety
purpose because its restrictions apply broadly to all offenders without regard for whether
an individual offender is dangerous.
But registration statutes need not make individualized determinations of
dangerousness. Smith held that because the “Ex Post Facto Clause does not preclude a
State from making reasonable categorical judgments that conviction of specified crimes
should entail particular regulatory consequences,” the State may “legislate with respect to
convicted sex offenders as a class, rather than require individual determination of their
dangerousness.” See 538 U.S. at 103–04 (emphasis omitted); Settle, 24 F.4th at 949
(applying Smith’s rationale and finding it “beside the point” that the plaintiff himself “may
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not pose a danger”). Thus, that some offenders may not pose a danger doesn’t render the
statute excessive with respect to its public safety purpose.
Nor does the statute apply to an excessively broad category of offenses. Plaintiffs
object that the statute captures those with “no felony record, who have not committed a
sexual offense, who have no history of offenses against minors, and who were convicted
for consensual sexual conduct.” Appellants’ Br. at 27; see also id. at 10. But despite this
innocuous framing, the offenses Plaintiffs cite as evidence of the statute’s overbreadth
confirm its reasonableness.
As an example of a qualifying non-felony offense, Plaintiffs cite a law governing
misdemeanor sexual battery, N.C. Gen. Stat. § 14-27.33. For non-sexual offenses, they
cite laws criminalizing castration and maiming, id. § 14-29, abduction of a minor, id. § 14-
41, and restraining a person without consent, id. § 14-43.3. For offenses not involving
minors, Plaintiffs point to laws prohibiting forcible sexual conduct, id. § 14-27.26, and
sexual conduct with a person with a mental disability, id. § 14-27.27(a)(2). And for
“consensual sexual conduct,” they cite laws criminalizing statutory rape, id. §§ 14-27.24–
.25, and incest, id. § 14-178. But given the seriousness of these offenses, we think their
inclusion in the registration statute is plainly reasonable considering the law’s public safety
purpose.
To be sure, we held in Doe v. Cooper that an earlier iteration of one of the registry’s
location restrictions was unconstitutional because it applied broadly to all qualifying
offenders and not just those who were dangerous to minors. See 842 F.3d 833, 845–47
(4th Cir. 2016). But Cooper involved an overbreadth challenge under the First
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Amendment, which requires that a content-neutral statute burdening First Amendment
activities pass intermediate scrutiny. Id. at 845–46. That is, the State was required to prove
that the statute “materially advance[s] an important or substantial government interest” and
doesn’t “burden substantially more speech than is necessary to further the government’s
legitimate interests.” Id. at 846 (cleaned up) (citations omitted). In an Ex Post Facto
challenge, by contrast, the law need only be reasonable in light of the nonpunitive
objective. Settle, 24 F.4th at 949.
Because the registration statute easily satisfies that lower bar, we find that it isn’t
excessive with respect to its public safety purpose.
3.
Next, we ask whether the statute has been “regarded in our history and traditions as
punishment.” Smith, 538 U.S. at 97. In doing so, we “compar[e] the registration [statute]
to historical punishments to consider whether the effects are the same.” Settle, 24 F.4th at
949 (citing Smith, 538 U.S. at 97–99).
Plaintiffs primarily contend that we need not engage in this inquiry because the
registration requirement “is punishment,” as it is a mandatory condition of probation and
supervised release. Appellants’ Br. at 31. But as we’ve discussed, supra Part II.A, Smith
involved a similar arrangement in which the registry requirements were set forth in the
criminal judgment. 538 U.S. at 95. The Court addressed this requirement in the first step
of the analysis—whether the legislature intended to create a civil scheme—and concluded
that the requirement was merely an effective way to inform offenders of the “civil
consequences of their criminal conduct.” 538 U.S. at 95–96. And in the second step, it
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then analyzed whether the scheme resembled historical punishments. Id. at 97–98.
Because the Court didn’t simply characterize this arrangement as punitive without
analyzing comparable historical punishments, neither will we.
Proceeding to that inquiry, we consider whether the statute is sufficiently like the
types of historical punishments Plaintiffs invoke—supervised release and banishment. We
conclude that neither are a compelling fit.
i.
First, consider supervised release. Smith acknowledged its parallel to the
registration requirement, but ultimately found it too dissimilar. Smith, 538 U.S. at 101–02.
It explained that supervised release “entail[s] a series of mandatory conditions and allow[s]
the supervising officer to seek the revocation of . . . release in case of infraction.” Id. at
101. But it rejected supervised release as a historical analogue to the registry, as registrants
were “free to move where they wish and to live and work as other citizens, with no
supervision,” and need not “seek permission” before making changes that they would have
to report. Id. at 101–02. Though the former isn’t true here, given the residency and work
restrictions, the latter is. Although registrants must report changes to their information,
they need not seek advanced permission.
Certainly, the registration requirement involves greater supervision than in Smith.
Registrants must register their information, N.C. Gen Stat. § 14-208.7, verify it
semiannually, id. § 14-208.9A(a), and provide updates for certain changes, id. § 14-208.9.
And they often undergo unplanned “compliance checks” from law enforcement. J.A. 79–
80; see also § 14-208.9A(b) (authorizing the sheriff to “attempt to verify that the offender
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continues to reside at the address last registered”). But Settle rejected treating similar
information-gathering activities as sufficiently analogous to historic punishments
involving supervision. See Settle, 24 F.4th at 951 (“Historically, a probation officer took
a far more active role in a probationer’s life than simply collecting information for a
database.” (quoting Shaw v. Patton, 823 F.3d 556, 564 (10th Cir. 2016). As in Settle, any
parallel to supervised release doesn’t move the needle.
ii.
Second, Plaintiffs contend that the restrictions on where they can live, work, and
visit are like the historical punishment of banishment. As did the Supreme Court in Smith
and this court in Settle, we disagree.
Smith described the historical punishment of banishment as “expel[ing] [the
offender] from the community.” 538 U.S. at 98. And Settle described it as rendering
offenders “dead in the law and entirely cut off from society.” 24 F.4th at 951 (cleaned up)
(quoting 1 William Blackstone, Commentaries *132). Although the restrictions at issue
here are severe, their effects aren’t akin to banishment.
To begin, registrants may still live in much of North Carolina. Plaintiffs presented
evidence that 49% of housing in Charlotte, 48.3% in Raleigh, and 42.8% in Greensboro
would be off-limits as options to registrants. But this leaves over half of each of these
metropolitan areas available, demonstrating that the registrants aren’t at all “expelled” from
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the community. 7 See McGuire, 50 F.4th at 1010 (rejecting comparison to banishment even
though 80% of housing was off-limits to registrants). Moreover, the district court’s finding
that only 411 out of the State’s 25,063 registrants are homeless, J.A. 120, shows that
registrants have managed to find some housing despite these restrictions.
That the residency restriction has exceptions also undermines any comparison to
banishment. Although registrants generally may not live within 1,000 feet of a school or
childcare center, they may do so if the facility opens after the registrant establishes
residency nearby. N.C. Gen. Stat. § 14-208.16(d). Because registrants are not even
completely prohibited from living in proximity to schools and childcare centers, the law
doesn’t come close to expelling them from the community. Cf. Nelson v. Town of Paris,
78 F.4th 389, 397–98 (7th Cir. 2023) (finding that 6,500-foot residency restriction didn’t
amount to banishment in part because it included a similar exception).
4.
Next, we consider whether the statute imposes an “affirmative disability or
restraint.” Smith, 538 U.S. at 97. We look to “how the effects of the [registry statute] are
felt by those subject to it.” Id. at 99–100. “If the disability or restraint is minor and indirect,
its effects are unlikely to be punitive.” Id. at 100.
Analyzing this factor in Settle, we relied heavily on the fact that the scheme’s
restrictions didn’t “approach the level of restraint imposed by a prison sentence”—the
7
Though Plaintiffs now say that the statute’s other restrictions exclude additional
housing, Appellants’ Br. at 15, 16, they bore the burden of proof at trial and failed to submit
other evidence painting a more comprehensive picture of the housing market.
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“paradigmatic example of an affirmative restraint.” 24 F.4th at 952 (quoting Smith, 538
U.S. at 100. Instead, we characterized the scheme’s restrictions as, “at worst, . . . minor
and indirect.” Id. (quoting Smith, 538 U.S. at 100).
Although the restrictions imposed by this scheme are less severe than imprisonment,
we think the restrictions may be more than “minor and indirect”—especially given Smith’s
command to consider “how the effects of the [registry statute] are felt by those subject to
it,” 538 U.S. at 99–100.
The district court highlighted the testimony of several registrants on this point. One
registrant recounted that he couldn’t visit (or was told to leave) a public park, a grocery
store, a McDonalds, and a government building, either because children were present or
because there was a playground on the premises. Others were restricted from attending
churches and political rallies or enrolling in community college programs. Still others
couldn’t attend their children’s activities, such as school concerts, graduations, and
sporting events. And several testified about their difficulties in finding housing and
employment.
Although the restrictions hardly equate to imprisonment, they impose serious
burdens on registrants’ everyday life. So we’ll assume, without deciding, that this amounts
to an “affirmative disability or restraint” and thus weighs in Plaintiffs’ favor. 8
8
Settle doesn’t demand otherwise, as it was decided on a motion to dismiss without
a similarly developed factual record. 24 F.4th at 938–39. Moreover, although Virginia
imposed work, residence, and location restrictions on sex offenders, Va. Code Ann.
§§ 18.2-370.2–18.2-370.5, Settle considered some of these restrictions to be distinct from
the registry program, 24 F.4th at 937 (noting that some restrictions were “tied to the
(Continued)
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5.
Next, we consider whether the registration statute promotes the traditional aims of
punishment—“mainly retribution and deterrence.” Settle, 24 F.4th at 952.
North Carolina does little to dispute the obvious: that the registry promotes both
goals to some extent. So we think this factor too favors the Plaintiffs.
Courts though tend to give this factor very little weight. We’ve recognized that
“Smith did not find it sufficient to simply state how the law might further the goals of
retribution and deterrence.” Settle, 24 F.4th at 952. Instead, Smith acknowledged that
“[a]ny number of governmental programs might deter crime without imposing
punishment.” 538 U.S. at 102. And it rejected arguments that aspects of the law were
retributive because they were nevertheless “reasonably related” to the law’s regulatory
objectives. Id. So too in Settle, we gave this factor little weight because the “wisps of
deterrence and retribution” weren’t “enough to show punitive intent.” 24 F.4th at 952.
Thus, although the registration statute no doubt serves the purposes of punishment,
that’s not a compelling reason to find the scheme punitive. Cf. Nelson, 78 F.4th at 399
(“[W]hether sex offender residency restrictions promote the traditional aims of punishment
conviction and not the registry”). In any event, North Carolina’s restrictions are more
severe. For example, while North Carolina prohibits registrants from residing within 1,000
feet of a school, N.C. Gen. Stat. § 14-208.16(a), Virginia’s prohibition is only 500 feet, Va.
Code Ann. § 18.2-370.3(A). And while North Carolina broadly restricts registrants from
even visiting locations “intended primarily” for children or “where minors frequently
congregate,” N.C. Gen. Stat. § 14-208.18(a), Virginia only prohibits being within 100 feet
of such places “for the purpose of having contact” with children or otherwise “loitering”
there, Va. Code Ann. § 18.2-370.2. Given these differences, Settle doesn’t bind our
analysis of this factor.
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provides little value to the over-all Smith inquiry . . . because all such regulations inevitably
overlap with the traditional aims of punishment . . . .”).
6.
Finally, Plaintiffs urge us to “consider the extent to which the registry scheme
burdens First Amendment and other fundamental liberties.” Appellants’ Br. at 33. Though
we may ordinarily do so, as the Smith factors are “neither exhaustive nor dispositive,”
Smith, 538 U.S. at 97 (quoting Ward, 448 U.S. at 249), Plaintiffs have forfeited this
argument by failing to develop it in their brief. See Grayson O Co. v. Agadir Int’l LLC,
856 F.3d 307, 316 (4th Cir. 2017) (explaining that an argument not developed in a party’s
opening brief is forfeited “even if its brief takes a passing shot at the issue” (cleaned up)).
Although we can glean from Plaintiffs’ brief their view that restrictions limiting their
access to churches, political rallies, and school events burden certain First Amendment and
parental rights, they offer no analysis of these claims.
But forfeiture aside, we fail to see how the violation of other constitutional rights
bears on whether the registration statute is punitive under the Ex Post Facto Clause.
Punishments must, of course, comply with constitutional limits. Just as a criminal sentence
of torture would be unconstitutional, Wilkerson v. Utah, 99 U.S. 130, 136 (1878), so too
would a sentence stripping an offender of all free exercise rights, cf. Bell v. Wolfish, 441
U.S. 520, 545 (1979) (noting that people convicted of crimes “do not forfeit all
constitutional protections by reason of their conviction and confinement in prison”). And
nonpunitive laws and practices too must comply with the Constitution. E.g., Trinity
Lutheran Church of Columbia, Inc v. Comer, 582 U.S. 449, 453, 466 (2017) (finding
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unconstitutional a policy of denying grants for playground resurfacing to churches just
because of their religious character). In other words, because both punitive and
nonpunitive laws must abide by other constitutional limits, whether the registration statute
violates other constitutional rights doesn’t inform our analysis under the Ex Post Facto
clause. 9
7.
Having considered each of the factors individually, we must now balance them to
determine “whether the sum provides the ‘clearest proof’ that the registry is punitive in
effect.” Settle, 24 F.4th at 948 (quoting Smith, 538 U.S. at 105). Though the registration
statute imposes difficult burdens on qualifying offenders, and furthers the goals of
punishment to some extent, the remaining factors—including the “most important” one—
all favor the State.
On balance, we can’t say that the record evidence shows by the “clearest proof” that
the statute is so excessive that it negates the legislature’s plainly nonpunitive intent.
Accordingly, the district court’s judgment is
AFFIRMED.
9
We express no view as to Plaintiffs’ suggestion that the statute violates other
constitutional rights. Because Plaintiffs haven’t asserted those claims independently here,
Reply Br. at 20, their resolution must await an appropriate case.
24