Michael A. McGuire v. Steven T. Marshall

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 15-10958
____________________
MICHAEL A. MCGUIRE,
Plaintiff-Appellant
Cross Appellee,
versus
STEVEN T. MARSHALL,
DERRICK CUNNINGHAM,
JOHN RICHARDSON,
Defendants-Appellees
Cross Appellants,
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2 Opinion of the Court 15-10958
CITY OF MONTGOMERY,
et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:11-cv-01027-WKW-CSC
____________________
∗
Before JILL PRYOR, ED CARNES, and RIPPLE, Circuit Judges.
PER CURIAM:
Plaintiff Michael McGuire is required to register as a sex
offender under the Alabama Sex Offender Registration and
Community Notification Act (“ASORCNA” or the “Act”), Ala.
Code § 15-20A-1 et seq. For as long as he lives in Alabama, Mr.
McGuire must report in person each quarter to law enforcement.
ASORCNA also subjects individuals, like Mr. McGuire, who are
required to register as sex offenders (“registrants”) to a variety of
other restrictions. A registrant generally cannot live or work within
∗
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh
Circuit, sitting by designation.
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2,000 feet of a school or childcare center. 1 A registrant who is
homeless must report in person each week to provide law
enforcement with updated information. And a registrant must
notify law enforcement before traveling away from his residence
for three or more consecutive days. In addition, when a registrant
moves to a new home, the Act requires law enforcement to mail
flyers to the registrant’s neighbors informing them of the
registrant’s status as a sex offender.
In this lawsuit, Mr. McGuire sued the Alabama Attorney
General and others, claiming that some provisions of ASORCNA
impose retroactive punishment in violation of the Constitution’s
Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. After a bench
trial, the district court entered judgment against Mr. McGuire,
concluding that the retroactive application of these provisions did
not amount to punishment. After careful review, we agree with the
district court. Accordingly, we affirm in part and vacate and
remand in part. 2
In Part I, we discuss the factual background and procedural
history of Mr. McGuire’s challenge to ASORCNA. In Part II, we
walk through ASORCNA’s relevant provisions. In Part III, we
identify the applicable standard of review. In Part IV, we address
1 ASORCNA includes some exceptions to the employment and residency
restrictions. See infra n.12.
2
We vacate and remand in part because some of Mr. McGuire’s challenges are
now moot. See infra Section IV.
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mootness. In Part V, we set forth the “intent-effects” framework
used to determine whether the Ex Post Facto Clause prohibits a
law’s retroactive application. In Part VI, we apply this framework
to analyze whether the Ex Post Facto Clause bars the retroactive
application of the challenged provisions.
I. FACTUAL BACKGROUND
A. Factual History
In 1986, Michael McGuire was convicted in Colorado of: (1)
first-degree sexual assault (rape) of his girlfriend “through the
actual application of physical force and physical violence” using a
knife “to cause submission”; (2) second-degree assault by causing
and attempting to cause bodily injury “by means of a deadly
weapon, to-wit: a knife and wine bottle”; and (3) menacing by
placing another “in fear of imminent serious bodily injury.” At the
time of the crime, both Mr. McGuire and his girlfriend were 30
years old. Mr. McGuire served three years in prison and completed
one year of parole. After his release from prison, Mr. McGuire
spent much of the next 20 years working as a hair stylist and jazz
musician in the Washington, D.C. area. During that time, he met
a woman with whom he entered a common-law marriage in 2001.
In 2010, Mr. McGuire and his wife decided to move to
Montgomery, Alabama, to live with and assist his elderly mother.
Upon arriving in Montgomery, Mr. McGuire registered as a sex
offender. He learned that he could not live with his mother because
her home was too close to a childcare center.
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Mr. McGuire looked for a compliant home. He asked local
law enforcement about the suitability of dozens of homes for rent
but was told that ASORCNA prevented him from living at any of
those addresses. He and his wife stayed at a motel until their money
ran out. The couple briefly stayed with Mr. McGuire’s brother. But
when his brother’s minor children returned from a vacation, Mr.
McGuire had to move out because ASORCNA prevented him from
staying overnight with minors present. Unable to find housing, Mr.
McGuire began living beneath an interstate overpass. He spent his
days at the home where his wife lived and his nights underneath
the interstate. Later he did find compliant housing. See infra n.20.
Upon returning to Montgomery, Mr. McGuire also faced
difficulties finding a job. The district court found that ASORCNA’s
employment restrictions prevented him from accepting or
applying for a number of jobs, including music-related
engagements. The court noted that he occasionally performed as a
musician at a venue in Montgomery that is more than 2,000 feet
from a school or childcare center.
Before filing this lawsuit, Mr. McGuire began receiving
Social Security disability benefit payments and has continued to
receive them since then. He testified that he started receiving those
disability benefits after he had confined himself to his house for
four years due to agoraphobia and after he had what he describes
as a “psychotic break” and “was diagnosed as schizophrenic.” He
also receives non-service-related benefit payments from the
Veterans Administration for the same mental disabilities.
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When Mr. McGuire was asked during the bench trial if he
was “completely unable to work,” he testified: “I can’t really
answer that question because I –– I don’t –– I haven’t been in a
work environment for a while, so I don’t know what my reactions
would be, due to my schizophrenia. I don’t know if I could –– if I
could function correctly on a job, but I’m willing to find out.” 3
3 Federal regulations permit the payment of social security disability benefits
only when a person’s disabilities render him unable to perform “any
substantial gainful activity.” 20 C.F.R. § 404.1505(a); see also id. (explaining
that a person is disabled when he has an impairment that meets or equals “the
listing for a finding of disability”); 20 C.F.R., pt. 404, subpt. P, app. 1, pt. A2,
§§ 12.03 (listing schizophrenia as a qualifying disability), 12.06 (listing
agoraphobia as a qualifying disability). “The regulations define ‘substantial
gainful activity’ as work that involves significant mental and physical activities
and that is the kind of work that is usually done for pay or profit.” Johnson v.
Sullivan, 929 F.2d 596, 597 (11th Cir. 1991) (citing 20 C.F.R. § 404.1572). In
determining whether work is substantial and gainful, a variety of factors are
considered, such as “the time spent in the work; quality of the performance;
whether the worker is self-employed; the need for special conditions or
supervision; use of experience, skills and responsibilities; and whether the
worker contributes substantially to the operation of the business.” Id. (citing
20 C.F.R. § 404.1573); see also 20 C.F.R. § 404.1574(b) (an employed person
earning more than a certain monthly income is generally considered to be
engaging in substantial gainful activity). The Social Security Administration’s
and the Veteran Administration’s determinations that Mr. McGuire was
disabled because of his mental health conditions are not necessarily
inconsistent with his performing either occasional work as a musician (as he,
in fact, did) or limited part-time work (as he testified that he wanted to do).
See Johnson, 929 F.2d at 597; U.S. Dep’t of Veterans Affs., Individual
Unemployability Fact Sheet (2018),
https://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/IU.p
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During the time that he was homeless, Mr. McGuire had to
register in person each week. He was required to report in person
each week to both the Montgomery County Sheriff’s Office and
the Montgomery City Police Department.4
B. Procedural Background
Mr. McGuire filed this lawsuit naming the Attorney General
of Alabama as defendant. 5 As relevant to this appeal, he challenged
portions of ASORCNA as unconstitutional ex post facto laws.
After a bench trial, the district court entered detailed
findings of fact and conclusions of law. In the findings of fact, the
court described the difficulties that Mr. McGuire faced in trying to
find housing and work outside of ASORCNA’s exclusion zones. It
also addressed the effect the residency and employment
restrictions had on other registrants in Montgomery. The court
found that these two restrictions made approximately 80 percent
of the City of Montgomery’s housing stock and 85 percent of its
df (stating that a veteran may receive disability benefits at a 100% rate when
he is unable to “maintain[] substantial gainful employment”).
4Since that time, ASORCNA has been amended, and homeless registrants are
no longer subject to dual reporting requirements with the county and the city.
See 2015 Ala. Laws 463; Ala. Code § 15-20A-12(b).
5 Mr. McGuire also named as defendants the City of Montgomery,
Montgomery’s Chief of Police, Montgomery’s Mayor, Montgomery County’s
Sheriff, and the Director of the Alabama Department of Public Safety. For
convenience, in discussing the defendants we refer only to the Attorney
General, who represents the positions of all the defendants.
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jobs off limits to registrants. But many registrants were able to find
housing and jobs in Montgomery nonetheless. Of the 430
registrants who lived or worked in the city, the court found only
three were homeless.6 And approximately 50 percent of these
registrants had jobs. Although this meant that roughly half of the
Montgomery registrants lacked jobs, the court noted that this
number included some registrants who were not actively seeking
employment. 7
6 The record also contains evidence about the number of homeless registrants
in Montgomery County, which encompasses the City of Montgomery.
Looking at those registrants who were registered with the County only, the
district court found that there were about 70 additional registrants, none of
whom was homeless. Considering the total number of registrants in both the
city and the remainder of the county, only three of 500, or six-tenths of one
percent of the registrants, were homeless.
7 The court made no findings of fact about the effect of the residency and
employment restrictions on registrants in communities outside of
Montgomery County. The record contains limited evidence about that. One
of Mr. McGuire’s experts opined that the residency and employment
restrictions likely would have a similar effect in Alabama’s other largest
cities—Birmingham, Hoover, Huntsville, Mobile, and Tuscaloosa. The expert
explained that there was a direct correlation between a city’s population
density and the proportion of the city that was covered by exclusion zones.
Because these other cities had similar population densities to Montgomery, he
expected that the residency and employment restrictions would impact
registrants in those communities similarly. Mr. McGuire offered no other
evidence addressing the effect of the residency and employment restrictions
on registrants living in any other part of Alabama, even though ASORCNA
applies statewide to the 577 cities, towns, and Census Designated Places
(CDPs) in Alabama and the 66 counties other than Montgomery. Instead, he
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The court’s conclusions of law addressed the merits of Mr.
McGuire’s ex post facto claims. The court explained that to prevail
Mr. McGuire had to establish either that the legislature intended
ASORCNA to impose punishment or that the challenged
restrictions were sufficiently punitive in purpose or effect to
overcome the legislature’s nonpunitive intent. The court found
that in enacting ASORCNA the Alabama legislature expressly
intended to create a civil regulatory scheme, not to impose
punishment. For most of the challenged restrictions, the district
court concluded that Mr. McGuire failed to carry his burden of
demonstrating that the restrictions were so punitive in purpose or
effect that the legislature’s nonpunitive intent was overridden.
There were two exceptions: ASORCNA’s dual reporting
provisions, which required homeless registrants living in cities to
report to both municipal and county law enforcement, and its
travel permit requirement, which mandated that registrants living
in cities obtain permission from both municipal and county law
enforcement before traveling outside the area. The court
determined that these two restrictions were so punitive in purpose
or effect that the legislature’s stated intent to create a civil
regulation was negated. The district court declared the retroactive
application of these two provisions unenforceable under the Ex
Post Facto Clause.
presented evidence about only a single city where half of the registrants have
jobs and more than 99 percent of them have housing.
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Both Mr. McGuire and the Attorney General appealed parts
of the district court’s judgment. While this appeal was pending, the
Alabama legislature amended ASORCNA. It removed the travel
permit requirement and clarified that registrants simply needed to
notify law enforcement before traveling. See 2017 Ala. Laws 414. It
also modified the dual reporting requirements. Registrants who
lived in cities no longer needed to report to both city and county
law enforcement officers if they were homeless or planned to
travel. See 2015 Ala. Laws 463.
In addition, the State changed how it implemented
ASORCNA’s requirement that a registrant carry a driver’s license
or state-issued identification card reflecting his status as a sex
offender. At the time the district court ruled, the Alabama Law
Enforcement Agency (“ALEA”) implemented this requirement by
issuing to registrants driver’s licenses or identification cards with
the label “CRIMINAL SEX OFFENDER” appearing in red letters
on the face of the license or card. In a different lawsuit, a group of
registrants challenged the labeling requirement under the First
Amendment. The district court in that case declared that the
identification requirement as implemented by ALEA was
unconstitutional. See Doe v. Marshall, 367 F. Supp. 3d 1310, 1339
(M.D. Ala. 2019). After that ruling, ALEA changed the designation
it used on licenses and identification cards by replacing the words
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“CRIMINAL SEX OFFENDER” with a code. Since then, ALEA has
issued to registrants new driver’s licenses and identification cards. 8
II. ASORCNA’S REGULATION OF SEX OFFENDERS
We now discuss the relevant restrictions that ASORCNA in
its current form imposes on sex offenders in Alabama. 9 These
measures include: requiring in-person quarterly registration;
providing direct notification to the public when a registrant lives
nearby; barring registrants from living, working, or volunteering
within 2,000 feet of schools or childcare centers; requiring
homeless registrants10 to report to law enforcement once a week;
and compelling registrants to notify law enforcement before
traveling.
8We take judicial notice of the district court’s order and judgment in Doe v.
Marshall as well as ALEA’s change in policy. See Cunningham v. Dist. Att’y’s
Off. for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010); United States v.
Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (noting that we may take judicial
notice of district courts’ records).
9When a challenged statute has been amended, we “review the judgment of
the district court in light of the law as it now stands.” Naturist Soc’y, Inc. v.
Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (alteration adopted) (internal
quotation marks omitted).
10ASORCNA defines “homeless” as “[t]he state of lacking a fixed residence.”
Ala. Code § 15-20A-4(7). Applying the statutory language, we use the term to
refer to registrants who lack a fixed residence.
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A. Registration and Direct Community Notification
ASORCNA requires adult sex offenders, 11 individuals who
were age 18 or older when they committed a crime defined under
Alabama law as a sex offense, to register with law enforcement.
Ala. Code §§ 15-20A-4(1), 15-20A-10. Adult sex offenders are
subject to ASORCNA for life. 12 Id. § 15-20A-3(b). The Act went into
effect on July 1, 2011, 2011 Ala. Laws 640 § 52, but its provisions
apply to persons convicted prior to this effective date. See Ala.
Code § 15-20A-3(a) (explaining that ASORCNA applies to all “adult
sex offender[s] . . . without regard to when his or her crime or
11Alabama imposes a separate set of restrictions on individuals who were not
yet 18 at the time of their sex offense. See Ala. Code §§ 15-20A-4(11), 15-20A-
26 to -34. Because Mr. McGuire committed his offense as an adult, we have no
occasion to address the restrictions that Alabama imposes on juvenile sex
offenders.
12 Some classes of registrants may be excused from ASORCNA’s restrictions.
Under the so-called “Romeo and Juliet” exception, a state court may excuse
an individual convicted of a sex offense from complying with ASORCNA if the
court finds that the sex offense did not involve force and was a crime only
because of the victim’s age, the victim was at least 13 years old at the time of
the offense, and the registrant was less than five years older than the victim.
Ala. Code § 15-20A-24(b), (i). Alabama also allows registrants to petition for
relief on a number of other grounds: relief from the employment restriction if
the offender was not convicted of certain serious sex crimes and poses little
risk of committing a future sex crime; relief from the residency restriction if
the offender is seriously ill or disabled; and relief from a registration period of
life for juvenile offenders. See id. §§ 15-20A-23, 15-20A-25, 15-20A-34.
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crimes were committed or his or her duty to register arose”). Thus,
it has retroactive application for those persons.
ASORCNA requires registrants to report in person to law
enforcement on a quarterly basis. Id. § 15-20A-10(f). A registrant,
like Mr. McGuire, who lives in a city has a dual reporting
requirement, meaning he13 must register each quarter both with
his county sheriff and with his municipality’s chief of police. See id.
§§ 15-20A-4(12), 15-20A-10(f). Each time a registrant reports he
must provide, among other things, information about where he is
living, working, or attending school.14 Id. § 15-20A-7(a). He also
must notify law enforcement when his registration information
changes. Id. § 15-20A-10(e)(1). A person who knowingly fails to
register or otherwise knowingly violates the reporting requirement
may be imprisoned for up to 10 years. Id. §§ 13A-5-6(a)(3), 15-20A-
7(f), 15-20A-10(j).
The Alabama legislature imposed the reporting requirement
to promote public safety. It explained that reporting creates
“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,
13 We refer to registrants using male pronouns for simplicity’s sake. Of course,
sex offenders of all genders must comply with ASORCNA.
14 Unless they have already been collected and have not been altered, a
registrant must provide (1) a photograph, (2) fingerprints, (3) a DNA sample,
(4) a copy of his identification card, and (5) a copy of his passport or
immigration documents. Ala. Code § 15-20A-7(b).
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monitoring, and tracking sex offenders.” Id. § 15-20A-2(1). It
specified that the purpose of the registration requirement was “not
to punish.” Id. § 15-20A-2(5). It stated that the registration
requirements were instead designed to “increas[e] public safety” by
“mandating the release of certain information to the public.” See
id. § 15-20A-2(1). The legislature believed these registration
requirements would “aid in public awareness and not only protect
the community but serve to deter sex offenders from future crimes
through frequent in-person registration.” Id.
ASORCNA also requires law enforcement to notify
community residents about the presence of a registrant in that
community. The purpose of community notification is to “protect
the community” by “inform[ing] the public of the presence of sex
offenders in the community.” Id. Again, the legislature specified
that the purpose of community notification was “not to punish.”
Id. § 15-20A-2(5).
ASORCNA mandates two types of community notification:
(1) indirectly through the internet on Alabama’s public sex offender
registry website and (2) directly by either mailing or hand
delivering notices to a registrant’s neighbors. Id. §§ 15-20A-8(a), 15-
20A-21(a), (b).
First, law enforcement must maintain a public registry
website with information about sex offenders. Id. § 15-20A-8(a).
The statute requires that the website include certain information
about each registrant in the state: his name, his home address, the
address of his school or job, his picture, and a list of his qualifying
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crimes. Id. And the website cannot include certain other
information: the registrant’s social security number; information
about arrests that did not result in conviction; travel and
immigration document numbers; the identity of victims; and the
registrant’s email addresses, instant message addresses, other
online identifiers, or internet service providers. Id. The website
must include “instructions on how to seek correction of
information that a person contends is erroneous.” Id. § 15-20A-8(g).
The website must include a warning that the information
contained on it “should not be used to unlawfully injure, harass, or
commit a crime against any person named in the registry or
residing or working at any reported address and that any such
action may result in civil or criminal penalties.” Id. § 15-20A-8(h). It
also must disclose that ALEA “did not consider or assess the
individual’s specific risk of reoffense or current dangerousness; that
inclusion on the website is based solely on an individual’s
conviction record and state law; and that the Legislature’s purpose
in providing this data is to make the information more easily
available and accessible, not to warn about any specific individual.”
Id.
Second, ASORCNA requires law enforcement to notify the
nearby members of the community directly by mailing or hand
delivering flyers about registrants. Id. § 15-20A-21(b). Self-
identifying as a “Sex Offender Notification Flyer” issued by the
Alabama Public Safety Community Information Center, the flyer
contains the same information about a registrant that is included
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on the public registry website. Id. Law enforcement must send the
flyers to a registrant’s neighbors when he first establishes a
residence. 15 Id. § 15-20A-21(a), (b). Law enforcement may also use
other notification methods such as posting a copy of the flyer in a
prominent place, including it in a local newspaper, or posting it
electronically. Id.
B. Residency Restrictions
ASORCNA’s residency restrictions impose geographic
restrictions on where registrants may live and bar them, between
the hours of 10:30 p.m. and 6:00 a.m., from places where minors
are present. 16 See Ala. Code §§ 15-20A-11(a), (d), 15-20A-4(14). The
Alabama legislature intended these restrictions to “protect[]
vulnerable populations, particularly children.” Id. § 15-20A-2(5). A
registrant who knowingly violates these restrictions may be
punished by up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-
20A-11(i).
15How widely law enforcement distributes the flyers depends on where the
registrant lives. In Birmingham, Mobile, Huntsville, and Montgomery, law
enforcement must distribute flyers to anyone who lives within 1,000 feet of
the registrant’s residence. Ala. Code § 15-20A-21(a)(1). In any other city with a
population of 5,000 or more, the distance is 1,500 feet. Id. § 15-20A-21(a)(2). In
any other area, the distance is 2,000 feet. Id. § 15-20A-21(a)(3). In addition, law
enforcement must notify all schools and childcare facilities within three miles
of the registrant’s residence. Id. § 15-20A-21(a).
16 ASORCNA also prohibits a registrant from living within 2,000 feet of a
former victim or the victim’s immediate family. Ala. Code § 15-20A-11(b). Mr.
McGuire does not challenge this restriction, so we do not address it.
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The geographic residency restriction prohibits registrants
from “resid[ing]” in exclusion zones that extend 2,000 feet from the
property line of each school and childcare center 17 in Alabama. Id.§ 15-20A-11(a). A registrant need not stay overnight at a place to
“reside” there. Id. § 15-20A-4(20). By definition, a registrant, even
one who is homeless, resides anywhere he is “habitually or
systematically present” and thus may reside at more than one place
at a time. Id. Whether a registrant resides at a place depends on
“the totality of the circumstances, including the amount of time the
person spends at the place and the nature of the person’s conduct
at the place.” Id. A registrant is considered to reside at a place if he
spends (1) “more than four hours a day” there “on three or more
consecutive days”; (2) “more than four hours a day” there “on 10
or more aggregate days during a calendar month”; or (3) “any
amount of time” there “coupled with statements or actions that
indicate an intent to live at the place or to remain at the place for
the periods specified in this sentence.” Id.
A registrant may live in an exclusion zone if, after
establishing his residence, changes occur to the surrounding area
that render the location noncompliant. See id. § 15-20A-11(c). For
17 ASORCNA also bars a registrant from residing within 2,000 feet of a
“resident camp facility.” Ala. Code § 15-20A-11(a). “[A] resident camp facility
includes any place, area, parcel, or tract of land which contains permanent or
semi-permanent facilities for sleeping owned by a business, church, or
nonprofit organization used primarily for educational, recreational, or
religious purposes for minors[.]” Id. As we have stated, registrants can apply
for relief from these residency restrictions. See id. § 15-20A-23.
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example, if a registrant lives outside an exclusion zone and a new
childcare center opens 500 feet away, the registrant generally may
stay in his home. In addition, the Attorney General represents to
us that the geographic residency restriction permits a registrant to
continue living in a residence that he established before
ASORCNA’s effective date unless the registrant was released or
convicted of a new offense after ASORCNA’s enactment. The
record supports that this is indeed how the law has been applied in
practice.18
Beyond the geographic residency restriction, ASORCNA
prohibits a registrant from “conduct[ing] an overnight visit with a
minor” unless the registrant is the parent, grandparent, stepparent,
sibling, or stepsibling of the minor. Id. § 15-20A-11(d). An overnight
visit means “[a]ny presence between the hours of 10:30 p.m. and
6:00 a.m.” Id. § 15-20A-4(14). Thus, during those hours, a registrant
may not be present—for any period or any reason—where a minor
18 There are two other exceptions to ASORCNA’s geographic residency
restrictions. First, before moving, a registrant may ask law enforcement to
determine whether his intended new residence complies with ASORCNA. If
law enforcement states in writing that the residence complies with
ASORCNA, the registrant has not violated the law if it later turns out that the
residence is within an exclusion zone. Ala. Code § 15-20A-11(g). Second, a
registrant who is terminally ill or permanently immobile, has a debilitating
medical condition requiring substantial care or supervision, or requires
placement in a residential health care facility may be permitted to live inside
an exclusion zone if a state court finds by clear and convincing evidence that
he does not a pose a “substantial risk” of committing a future sex offense. Id.§ 15-20A-23(a), (g).
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is present, unless the registrant and the minor are related in one of
the ways listed in § 15-20A-11(d).
C. Employment Restriction
ASORCNA limits where registrants may work or volunteer.
The Act bars registrants from “accept[ing] or maintain[ing]
employment or a volunteer position within 2,000 feet of the
property on which a school or childcare facility is located.” Ala.
Code § 15-20A-13(b). 19 An exception permits a registrant to
continue to work in an exclusion zone if, after he accepts
employment, a new school or childcare center opens within 2,000
feet of his workplace. See id. § 15-20A-13(d). Additionally, a
registrant may petition for relief from these employment
restrictions if he was not convicted of certain sexual offenses and
the court finds by clear and convincing evidence that he does not
pose a substantial risk of committing another sexual offense. Id.
§ 15-20A-25(a), (f).
Like the residency restrictions, the Alabama legislature
enacted the employment restriction to “further[] the primary
governmental interest of protecting vulnerable populations,
19 ASORCNA includes two other employment restrictions. One
bars registrants from working or volunteering at schools, childcare centers, or
businesses that primarily serve children. Ala. Code § 15-20A-13(a). The other
bars registrants convicted of sex offenses involving children from working or
volunteering within 500 feet of a playground, park, athletic field or facility, or
other business or facility having a principal purpose related to children. Id.§ 15-20A-13(c).
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20 Opinion of the Court 15-10958
particularly children.” Id. § 15-20A-2(5). A registrant who
knowingly violates the employment restriction may be punished
with up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-20A-
13(g).
D. Homeless Registration Requirement
Registrants who are homeless must report to law
enforcement far more frequently than registrants who have fixed
residences. Homeless registrants must report 56 times a year
because, in addition to the quarterly reports required of all
registrants, they must make weekly reports to law enforcement.
Ala. Code §§ 15-20A-10(f), 15-20A-12(b). Each week, a registrant
who is homeless must provide a detailed description of where he
“resided during the week” and a list of locations where he “plans to
reside in the upcoming week with as much specificity as possible.”
Id. § 15-20A-12(d)(1).
The Alabama legislature required homeless sex offenders to
report more often than other registrants because of “their
mobility,” finding that more frequent registration would protect
the public. Id. § 15-20A-2(3). It found that “[a]s the number of
homeless sex offenders increases, locating, tracking, and
monitoring these offenders becomes more difficult.” Id. The
legislature expressly “declare[d] that its intent in imposing” this
monitoring requirement was “not to punish.” Id. § 15-20A-2(5). If a
homeless registrant “knowingly violates” the registration
requirements, he faces up to 10 years’ imprisonment. Id. §§ 13A-5-
6(a)(3), 15-20A-12(f).
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E. Travel Notification Requirement
The Act requires registrants to notify law enforcement
when traveling. Before leaving his county of residence for three or
more consecutive days, a registrant must report to the county
sheriff and “sign a travel notification document.” Ala. Code § 15-
20A-15(a). He must disclose his dates of travel, intended
destination, and temporary lodging information. Id. § 15-20A-15(b).
For domestic travel, a registrant must complete the document
within three business days of beginning his trip. Id. §§ 15-20A-4(9),
15-20A-15(a). For international travel, he generally must complete
the travel form 21 days prior to travel. Id. § 15-20-15(c). A registrant
who knowingly violates the travel notification requirement faces
up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-20A-15(h).
The Alabama legislature imposed the travel notification
requirement “to protect the public, and, most importantly, [to]
promote child safety,” not to punish registrants. Id. § 15-20A-2(5).
III. STANDARD OF REVIEW
Because Mr. McGuire appeals the district court’s judgment
entered after a bench trial, “we review the district court’s
conclusions of law de novo and the district court’s factual findings
for clear error.” Proudfoot Consulting Co. v. Gordon, 576 F.3d
1223, 1230 (11th Cir. 2009).
IV. MOOTNESS
Before turning to the merits of Mr. McGuire’s claims, we
must address whether any of Mr. McGuire’s claims are moot. As
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22 Opinion of the Court 15-10958
we noted above, while this appeal was pending, the Alabama
legislature amended ASORCNA, and ALEA changed the way it
implemented ASORCNA’s identification-labeling requirement.
See supra Section I-B.
The Constitution’s “cases” and “controversies” requirement
“subsists through all stages of federal judicial proceedings.” Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “[I]t is not enough
that a dispute was very much alive when [the] suit was filed.” Id.“The parties must continue to have a personal stake in the outcome
of the lawsuit.” Id. at 478 (internal quotation marks omitted).
Otherwise, we lack jurisdiction.
When a plaintiff challenges a law as unconstitutional and
seeks only declaratory and injunctive relief, as Mr. McGuire does
here, a subsequent change to the law or relevant policy can moot
his claims. See Crown Media, LLC v. Gwinnett Cnty., 380 F.3d
1317, 1324 (11th Cir. 2004); Jews for Jesus, Inc. v. Hillsborough
Cnty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). In a case
like this one involving multiple challenges, the entire case becomes
moot only when the superseding statute removes all challenged
features of the law. Coral Springs St. Sys., Inc. v. City of Sunrise,
371 F.3d 1320, 1342–43 (11th Cir. 2004). Challenges to individual
features may become moot, however. See Crown Media, 380 F.3d
at 1324.
Whether a defendant’s voluntary cessation of conduct
moots a claim is subject to a “stringent” test. Coral Springs,
371 F.3d at 1328 (internal quotation marks omitted). But we give
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15-10958 Opinion of the Court 23
“governmental entities and officials . . . considerably more leeway”
than private parties. Id. at 1328–29. The repeal or amendment of a
statute or policy generally will moot a challenge unless there is a
“substantial likelihood” that the challenged statute or policy will be
reenacted or reinstated. Id. at 1329; Jews for Jesus, 162 F.3d at 629.
We agree with the parties that amendments to ASORCNA
have not mooted Mr. McGuire’s entire case. Some of the
challenged provisions—the residency and employment
restrictions, the homeless registration requirement, the travel
notification requirement, and community notification—remain in
effect. Accordingly, we address the merits of these claims based on
ASORCNA as it currently exists. See Naturist Soc’y, Inc. v. Fillyaw,
958 F.2d 1515, 1520 (11th Cir. 1992).
But Mr. McGuire’s objections to other requirements of
ASORCNA are moot. These include challenges to the dual
reporting requirements for city-dwelling registrants who are
homeless or plan to travel. After the district court declared these
requirements unconstitutional, ASORCNA was amended to
remove those particular dual reporting requirements. Mr. McGuire
does not contend that there is a substantial likelihood that those
dual reporting provisions will be reenacted; thus we conclude that
the claims challenging these requirements are moot.
Mr. McGuire’s challenge to the identification-labeling
requirement also is moot. Under ASORCNA, a registrant must
carry a valid driver’s license or other identification card issued by
ALEA. Ala. Code § 15-20A-18(a). The identification must “bear a
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24 Opinion of the Court 15-10958
designation that, at a minimum, enables law enforcement officers
to identify the licensee as a sex offender.” Id. § 15-20A-18(c). ALEA
implemented the labeling requirement by placing the phrase
“CRIMINAL SEX OFFENDER” in red, capital letters on the front
of registrants’ driver’s licenses and identification cards. While this
appeal was pending, however, ALEA changed its policy and no
longer uses the “CRIMINAL SEX OFFENDER” label.
Given ALEA’s policy change, Mr. McGuire’s challenge is
moot. ALEA ceased using the “CRIMINAL SEX OFFENDER”
label after a district court in another case declared it
unconstitutional, and the Attorney General did not appeal that
decision. See Doe, 367 F. Supp. 3d at 1339. We presume that ALEA
will not reinstate the policy. Therefore, Mr. McGuire’s challenge
to the identification-labeling requirement is moot. See Coral
Springs, 371 F.3d at 1328–29.
To recap: the part of Mr. McGuire’s appeal challenging the
identification-labeling requirement is moot. Also moot is the
Attorney General’s cross-appeal challenging the district court’s
order striking the dual reporting requirements for homeless
registrants and for travel notification. As a result, we will vacate the
district court’s judgment as to those requirements and remand
with directions to dismiss as moot Mr. McGuire’s claims
challenging them. See CIA v. Holy Spirit Ass’n for the Unification
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15-10958 Opinion of the Court 25
of World Christianity, 455 U.S. 997, 997 (1982); Great W. Sugar Co.
v. Nelson, 442 U.S. 92, 93 (1979). 20
20 While this appeal was pending, the Attorney General sought to dismiss Mr.
McGuire’s challenge to the homeless registration requirement as moot
because Mr. McGuire was no longer homeless. After oral argument, we
remanded the case to the district court for the limited purpose of finding facts
to determine whether this challenge was moot. Although Mr. McGuire had
lived in a house for a time, the district court found that he was homeless again.
Even when he was not homeless, the court found, there existed a reasonable
expectation and demonstrated probability that he would return to being
homeless in the future. The court also concluded that if Mr. McGuire ceased
to be homeless in the future, his period of homelessness would be too short to
litigate fully his challenge to the homeless registration provision.
It appears from Alabama’s sex offender registry website that Mr. McGuire’s
current address is at a house in Montgomery, and he is no longer homeless.
ALEA’s Sex Offender Registry is available here:
https://www.icrimewatch.net/results.php?AgencyID=
54247&SubmitNameSearch=1&OfndrCity=montgomery&OfndrLast=&Of
ndrFirst=&level=&AllCity=&altaddr=home_addr&excludeIncarcerated=0
&page=1 (last visited Sept. 29, 2022). We may take judicial notice of it. See
Fed. R. Evid. 201(b), (d); United States v. Howard, 28 F.4th 180, 186 n.2 (11th
Cir. 2022) (“Absent some reason for mistrust, courts have not hesitated to take
judicial notice of agency records and reports.”) (internal quotation marks
omitted). Still, given the district court’s findings, we conclude that his
challenge to the homeless reporting requirement is not moot under the
capable-of-repetition-yet-evading-review exception to the mootness doctrine.
See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016).
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26 Opinion of the Court 15-10958
V. THE LEGAL FRAMEWORK FOR EVALUATING EX
POST FACTO CLAIMS
The Constitution forbids states from “pass[ing] any . . . ex
post facto Law.” U.S. Const. art. I, § 10, cl. 1. The Ex Post Facto
Clause prohibits retroactive punishment; that is, it “forbids the
application of any new punitive measure to a crime already
consummated.” Kansas v. Hendricks, 521 U.S. 346, 370 (1997)
(internal quotation marks omitted). By prohibiting retroactive
punishments, “the Framers sought to assure that legislative Acts
give fair warning of their effect and permit individuals to rely on
their meaning until explicitly changed.” Weaver v. Graham,
450 U.S. 24, 28–29 (1981). The framers of the Constitution intended
provisions that serve as a check on a state’s power, like the Ex Post
Facto Clause, to protect disfavored groups:
Whatever respect might have been felt for the state
sovereignties, it is not to be disguised that the framers
of the constitution viewed, with some apprehension,
the violent acts which might grow out of the feelings
of the moment; and that the people of the United
States, in adopting that instrument, have manifested
a determination to shield themselves and their
property from the effects of those sudden and strong
passions to which men are exposed.
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15-10958 Opinion of the Court 27
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137–38 (1810). 21 Because
the Ex Post Facto Clause prohibits the retroactive application only
of laws imposing punishment, a statutory scheme that is civil and
regulatory in nature rather than criminal may apply retroactively
without violating the Constitution. See Collins v. Youngblood,
497 U.S. 37, 43 (1990); United States v. W.B.H., 664 F.3d 848, 852
(11th Cir. 2011).
To show entitlement to relief under the Ex Post Facto
Clause, Mr. McGuire must establish that the challenged provisions
in ASORCNA are criminal in nature. To determine whether a law
is criminal in nature, we apply a two-part “intent-effects” test. See
Smith v. Doe, 538 U.S. 84, 92 (2003). In the first step of the inquiry,
we ask whether the legislature intended to impose punishment. Id.If the legislature intended to impose punishment, the inquiry ends,
and the statutory scheme is punitive. Id. If the intent of the
legislature was to create a civil and nonpunitive scheme, we
proceed to the second step and ask whether the statutory scheme
is “so punitive either in purpose or effect as to negate” the
legislature’s intent to deem it civil. Id. (internal quotation marks
omitted). The Supreme Court has cautioned, “[b]ecause we
21 See also The Federalist No. 44, at 249 (James Madison) (E.H. Scott ed., 1898)
(describing the Ex Post Facto Clause as a “constitutional bulwark in favor of
personal security and private rights”); The Federalist No. 84, at 468 (Alexander
Hamilton) (E.H. Scott ed., 1898) (“[T]he subjecting of men to punishment for
things which, when they were done, were breaches of no law . . . ha[s] been,
in all ages, [a] favorite and most formidable instrument[] of tyranny.”).
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28 Opinion of the Court 15-10958
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.(emphasis added) (internal quotation marks and citation omitted).
We discuss each step of the intent-effects analysis below.
A. The Intent Analysis
At the first step in our analysis, we ask “whether the
legislature, in establishing the penalizing mechanism, indicated
either expressly or impliedly a preference for [a civil or criminal]
label.” Smith, 538 U.S. at 93 (internal quotation marks omitted).
For this inquiry into legislative intent, we “consider the statute’s
text and its structure.” Id. at 92.
When the legislature states in a statute’s text that the
objective of the statutory scheme is to protect the public, it
indicates an exercise of the State’s power to protect the health and
safety of its citizens and evidences an intent to enact a civil
regulatory scheme. See id. at 93–94. In Smith, a group of sex
offenders challenged Alaska’s statute that required sex offenders to
register with law enforcement and made much of the registration
information public. Id. at 90–91. The plaintiffs claimed that
retroactive application of the statute violated the Ex Post Facto
Clause. Id. at 89. Under the Alaska law, individuals who had
committed sex offenses were required to register with local law
enforcement either quarterly for life or annually for fifteen years,
depending on the number and the seriousness of their prior sex
offense convictions. Id. at 90. The law also required the State to
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15-10958 Opinion of the Court 29
maintain a publicly available registry of sex offenders, which it
made available on a website. Id. at 90–91.
The Supreme Court concluded that the Alaska legislature
intended the registration and community notification scheme to be
civil. Id. at 93. The Court explained that the statute included a
finding that sex offenders posed a high risk of reoffending and
identified protecting the public as the primary governmental
interest behind the law. Id. The Court accepted these statements
on their face as sufficient to indicate that the legislature intended to
create “a civil scheme designed to protect the public from harm.”
Id. (alteration adopted) (internal quotation marks omitted). It
stated that the “imposition of restrictive measures on sex offenders
adjudged to be dangerous is a legitimate nonpunitive
governmental objective and has been historically so regarded.” Id.(internal quotation marks omitted).
The Court rejected the registrants’ argument that other
features of the statute showed that the legislature intended it to be
punitive. See id. at 93–94. The registrants argued that the
codification of the registration provisions in the state’s criminal
procedure code showed a legislative intent to punish. Id. The Court
acknowledged that the placement of the provisions in the criminal
procedure code could be probative of the legislature’s intent. Id. at
94. But it found this placement “not dispositive” because the
“location and labels of a statutory provision do not by themselves
transform a civil remedy into a criminal one.” Id. The Court thus
determined that “[t]he partial codification” of the registration
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30 Opinion of the Court 15-10958
provisions in the criminal procedure code was insufficient “to
support a conclusion that the legislative intent was punitive.” Id. at
95.
B. The Purpose or Effect Analysis
In the second step of the inquiry, we “examine whether the
statutory scheme is so punitive either in purpose or effect as to
negate the State’s intention to deem it civil.” Smith, 538 U.S. at 92(alteration adopted) (internal quotation marks omitted). To
determine whether a regulatory scheme is “so punitive” in purpose
or effect when applied retroactively, we consider several factors
that the Supreme Court originally adopted in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168–69 (1963), and later applied
in the ex post facto context, see Smith, 538 U.S. at 97. Mendoza-
Martinez directed us to consider:
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.
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15-10958 Opinion of the Court 31
Smith, 538 U.S. at 97. 22 These factors, which were “designed to
apply in various constitutional contexts,” are “neither exhaustive
nor dispositive” and instead function as “useful guideposts.” Id.(internal quotation marks omitted). Because courts “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. at 92(internal quotation marks and citation omitted). The Supreme
Court has described this as a “heavy burden.” Hendricks, 521 U.S.
at 361. As our sister circuit has observed, “[t]his is a challenging
standard for plaintiffs.” Hope v. Comm’r of Ind. Dep’t of Corr., 9
F.4th 513, 530–31 (7th Cir. 2021) (en banc).
As we apply the listed factors, Smith, following Mendoza-
Martinez, commands that we consider the challenged statutory
scheme in its “necessary operation.” Smith, 538 U.S. at 97. Courts
generally use one of three distinct frameworks to review a
constitutional challenge to a statutory provision, treating it as an
22 Mendoza-Martinez identified two other factors, “whether the regulation
comes into play only on a finding of scienter and whether the behavior to
which it applies is already a crime.” Smith, 538 U.S. at 105. In Smith, the Court
gave these factors “little weight.” Id. The Court explained that Alaska’s
scheme applied “only to past conduct, which was, and is, a crime.” Id.Although the duty to register applied to individuals with prior convictions for
sexual offenses only, the Court found it significant that the duty to register was
based on prior crimes and “not predicated upon some present or repeated
violation.” Id. Following the Supreme Court’s lead, we likewise give these
factors little weight and find it unnecessary to address them further.
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32 Opinion of the Court 15-10958
as-applied, a facial, or a quasi-facial challenge. After considering
Smith, we conclude that “necessary operation” review does not fit
neatly into any of these frameworks. Let us explain why.
In an as-applied challenge, a plaintiff seeks to vindicate only
her own constitutional rights. Jacobs v. Fla. Bar, 50 F.3d 901, 906
(11th Cir. 1995). In evaluating an as-applied challenge, a court
“addresses whether a statute is unconstitutional on the facts of a
particular case” or in its application “to a particular party.” Harris
v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir.
2009) (internal quotation marks omitted). By contrast, in a facial
challenge, a plaintiff seeks “to invalidate a statute . . . itself” and to
vindicate not only her own rights “but also those of others who
may be adversely impacted by the statute.” DA Mortg., Inc. v. City
of Miami Beach, 486 F.3d 1254, 1262 (11th Cir. 2007) (internal
quotation marks omitted). A plaintiff who brings a facial challenge
“bears the burden of proving that the law could never be applied
in a constitutional manner.” Id. To prevail, the plaintiff “must
establish that no set of circumstances exists under which the
[statute] could be valid.” Am. Fed’n of State, Cnty. & Mun. Emps.
Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (internal
quotation marks omitted). In a “quasi-facial” challenge, the plaintiff
contends that the law cannot be constitutionally applied to a
defined subset of people the law covers, which includes herself. Id.To prevail in a quasi-facial challenge, he must satisfy the standard
for a facial challenge to the extent that his claim “reach[es] beyond
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15-10958 Opinion of the Court 33
[her] particular circumstances.” Doe v. Reed, 561 U.S. 186, 194
(2010).
At first blush, Mr. McGuire appears to have brought an as-
applied challenge because in his complaint he sought to vindicate
his individual rights alone through a determination that the
defendants had applied an ex post facto law to him. He did not ask
the court to provide relief from ASORCNA’s provisions to any
other registrants. But an ex post facto challenge is different: we do
not review it as we would an as-applied claim, where we focus
exclusively on a law’s application to a particular party. See Seling
v. Young , 531 U.S. 250, 263–65 (2001).
In Young, the plaintiff challenged his confinement under a
state law that authorized the civil commitment of sexually violent
individuals who suffered “from a mental abnormality or
personality disorder” that made them “likely to engage in
predatory acts of sexual violence.” Id. at 253. Shortly before Young
completed his prison sentence for a sex crime, he was civilly
committed. Id. at 255–56. After years of confinement, he filed a
federal habeas petition claiming that his continued detention
violated the Ex Post Facto and Double Jeopardy Clauses. Id. at 258.
He alleged that the confinement statute was punitive as applied to
him because of the length of time he had been confined and the
conditions of his confinement, which were more restrictive than
those placed on other civil commitment detainees. Id. at 259. The
Ninth Circuit concluded that Young had adequately alleged the law
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34 Opinion of the Court 15-10958
was punitive as applied to him and remanded for further
proceedings. Id. at 260.
The Supreme Court rejected the Ninth Circuit’s conclusion
that Young “could raise an ‘as-applied’ challenge to the [statute] on
. . . ex post facto grounds.” Id. at 262. It explained that a court may
not evaluate the “civil nature of an Act by reference to the effect
that Act has on a single individual.” Id. at 262; see also Flemming
v. Nestor, 363 U.S. 603, 614 (1960) (noting that a civil law is “not
punishment even though it may bear harshly upon one affected”).
The Court warned that considering the effect of a law on only a
single individual was “unworkable” because such an analysis
would “never conclusively resolve whether a particular scheme is
punitive.” Young, 531 U.S. at 263. Young makes clear that an ex
post facto claim cannot be treated as an as-applied challenge. See
id. at 262–63; Does v. Wasden, 982 F.3d 784, 791 (9th Cir. 2020)
(explaining that “ex post facto claims based on the punitive effect
of purportedly civil statutes cannot be construed as ‘as-applied’
challenges”).
Nor do ex post facto claims fit the frameworks used to
review facial or quasi-facial challenges. In Smith, after concluding
that the legislature intended to create a civil scheme, the Supreme
Court considered whether Alaska’s registration and community
notification provisions were sufficiently punitive in effect to
override the Alaska legislature’s expressed intent. See 538 U.S at 97.
In applying the Mendoza-Martinez factors, the Court did not use
the words “facial” or “quasi-facial,” and it did not inquire whether
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15-10958 Opinion of the Court 35
there was at least one sex offender to whom the registration or
notification provisions could retroactively be applied without
violating the Constitution. Id. at 97–106. Instead, the Court’s
reasoning reflects that it considered the effects of the registration
and notification provisions as they were generally felt by those who
were subject to them. See id. at 100 (evaluating whether the
challenged law imposed an affirmative disability or restraint, a
Mendoza-Martinez factor, by looking for evidence that the
statutory provisions “led to substantial occupational or housing
disadvantages for former sex offenders that would not have
otherwise occurred through the use of routine background checks
by employers and landlords”).
Regardless of how the framework is described, we can distill
that a plaintiff has a “heavy burden,” Hendricks, 521 U.S. at 361,
when seeking to override a legislative expression of intent that a
challenged provision is civil, and “only the clearest proof will
suffice” to meet that burden, Smith, 538 U.S. at 92. 23 We
23 Our decision in Doe v. Miami-Dade County, 974 F.3d 1333 (11th Cir. 2020),
is not to the contrary. That case involved an ex post facto challenge to a county
ordinance that barred sex offenders whose victims were children from living
within 2,500 feet of a school. Id. at 1335. Before trial, the registrants
“affirmatively disavowed” that they were seeking as-applied relief, telling the
court they sought “only” facial relief. Id. at 1339 n.3, 1340. During trial, the
registrants shifted gears and sought to amend their complaint to add an as-
applied claim. Id. at 1336–37. The district court refused to allow the registrants
to amend their complaint at that point. Id. at 1337. We affirmed, holding that
the district court did not abuse its discretion in denying leave to amend,
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36 Opinion of the Court 15-10958
understand that a plaintiff cannot carry his heavy burden by
demonstrating the law’s effects only as to him. At the same time, a
plaintiff need not satisfy the standard for a facial or quasi-facial
challenge, which would require a showing that the law could never
be applied retroactively in a constitutional manner.
VI. ANALYSIS OF ASORCNA’S CHALLENGED
PROVISIONS UNDER THE INTENT-EFFECTS TEST
At last, we apply the intent-effects test to determine whether
ASORCNA is civil or punitive. Because we conclude that the
Alabama legislature intended to enact a civil legislative scheme, we
must assess whether Mr. McGuire has shown by “the clearest
proof” that ASORCNA’s challenged provisions are so punitive in
purpose or effect as to override the Alabama legislature’s stated
intent to enact a civil regulatory scheme. See Smith, 538 U.S. at 92.
We hold that he has failed to meet that heavy burden. See
Hendricks, 521 U.S. at 361.
emphasizing that the county had no notice that the registrants intended to
bring an as-applied claim and thus no opportunity to prepare to rebut that
claim. Id. at 1339–41.
We questioned whether there was any actual distinction between an “as-
applied” and “facial” ex post facto challenge. Id. at 1339 n.3. But given the
registrants’ litigation strategy and their express disavowal in the district court
that they were bringing an as-applied challenge, we assumed, without
deciding, that different frameworks were used to review “as-applied” and
“facial” ex post facto challenges. See id.USCA11 Case: 15-10958 Date Filed: 10/03/2022 Page: 37 of 81
15-10958 Opinion of the Court 37
A. The Alabama Legislature Intended to Create a Civil,
Nonpunitive Scheme
We begin by looking to the Alabama legislature’s intent. In
its legislative findings, the legislature explained that it had enacted
the employment and residency restrictions along with the
“monitoring and tracking” and community notification provisions
to “further[] the primary governmental interest of protecting
vulnerable populations, particularly children.” Ala. Code § 15-20A-
2(5). It also declared that “its intent in imposing certain registration,
notification, monitoring, and tracking requirements on sex
offenders [was] not to punish sex offenders but to protect the public
and, most importantly, promote child safety.” Id. We conclude that
by expressly disavowing an intent to punish sex offenders and
setting forth public-safety-related goals for the statutory scheme,
the Alabama legislature intended the legislation to be nonpunitive.
See Smith, 538 U.S. at 93 (holding that Alaska legislature intended
to enact a civil scheme when statutory text identified protecting the
public as the primary governmental interest).
Mr. McGuire argues that despite the Alabama legislature’s
expressed intent, before turning to the Mendoza-Martinez factors
we should infer from the structure of ASORCNA that the
legislature intended the scheme to be punitive because the statute
is codified in Alabama’s criminal procedure code and imposes
criminal penalties on registrants who violate its provisions. He also
argues that a canon of statutory construction indicates that the
Alabama legislature had a punitive intent. But neither the structure
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38 Opinion of the Court 15-10958
of the Act nor the application of the canons of construction reveals
a punitive intent.
We are not persuaded by Mr. McGuire’s codification
argument. Even though a state legislature’s decision to codify a
statutory scheme in its criminal code may indicate a legislative
intent to enact a punitive scheme, Smith tells us that when the
legislature stated expressly in the statute that it intended the
legislative scheme to have a nonpunitive objective, the location of
the statutory provisions alone is insufficient to conclude otherwise.
Id. at 94–95. We acknowledge that Mr. McGuire’s codification
argument is somewhat stronger here than the registrants’
argument in Smith because all (not just part) of ASORCNA is
codified in Alabama’s criminal procedure code. But Smith’s
reasoning leads us to reject this argument. Id. As the Court pointed
out, “[i]nvoking the criminal process in aid of a statutory regime
does not render the statutory scheme itself punitive.” Id. at 96.
Mr. McGuire’s related structural argument, that the
legislature intended ASORCNA to be punitive because violations
of it are criminal, is foreclosed by our decision in W.B.H. In
W.B.H., we considered whether Congress intended SORNA, the
federal statute requiring in-person sex offender registration, to be
civil or punitive. 664 F.3d at 854. We rejected the argument that
Congress implicitly intended to create a punitive scheme by
imposing a criminal penalty for violating the registration
requirement because “civil regimes may impose criminal penalties
for violations of their regulatory requirements.” Id. Given
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15-10958 Opinion of the Court 39
Congress’s statement that the objective of the statute was to
protect children from sex offenders, we held that Congress
intended to enact a civil, nonpunitive scheme despite making
failure to register a crime. Id. at 854–55. W.B.H. dictates our
conclusion that the Alabama legislature intended ASORCNA to be
civil even though the statute imposes criminal penalties on
registrants who fail to comply with its provisions.
Mr. McGuire’s next argument is that we should conclude
the Alabama legislature intended the residency and employment
restrictions to be punitive based on the expressio unius est exclusio
alterius canon of construction. The legislature specified that the
registration, notification, monitoring, and tracking requirements
were not intended to punish sex offenders without mentioning the
residency and employment restrictions in that particular sentence,
though they are addressed in the same paragraph. Ala. Code § 15-
20A-2(5). 24 Mr. McGuire argues that under the expressio unius
24 In its entirety, the paragraph states:
Sex offenders, due to the nature of their offenses, have a
reduced expectation of privacy. In balancing the sex offender’s
rights, and the interest of public safety, the Legislature finds
that releasing certain information to the public furthers the
primary governmental interest of protecting vulnerable
populations, particularly children. Employment and residence
restrictions, together with monitoring and tracking, also
further that interest. The Legislature declares that its intent in
imposing certain registration, notification, monitoring, and
tracking requirements on sex offenders is not to punish sex
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40 Opinion of the Court 15-10958
canon, we must infer that the legislature intended the omitted
residency and employment restrictions to be punitive. We cannot
agree.
Under this canon of construction, “when a legislature has
enumerated a list or series of related items, the legislature intended
to exclude similar items not specifically included in the list.”
Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1193
(11th Cir. 2011). But the canon “can be overcome by contrary
indications that adopting a particular rule or statute was probably
not meant to signal any exclusion.” Marx v. Gen. Revenue Corp.,
568 U.S. 371, 381 (2013) (internal quotation marks omitted).
We reject Mr. McGuire’s argument because the expressio
unius canon is overcome here. In context, ASORCNA’s exclusion
of the residency and employment restrictions from the list of
provisions that the legislature stated in one sentence were intended
“not to punish” does not signal that it intended for them to be
punitive. Ala. Code § 15-20A-2(5). It does not because in the
immediately preceding sentence of the very same paragraph, the
legislature stated that the residency and employment restrictions
“also further” the interest in “protecting vulnerable populations,
particularly children.” Id. That indicates a civil, nonpunitive intent.
See Smith, 538 U.S. at 93–94.
offenders but to protect the public and, most importantly,
promote child safety.
Ala. Code § 15-20A-2(5).
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15-10958 Opinion of the Court 41
B. Mr. McGuire Failed to Establish by the Clearest Proof
that the Challenged Restrictions Are Sufficiently
Punitive to Override the Legislature’s Intent
Having determined that the Alabama legislature intended
ASORCNA to be civil and regulatory rather than punitive, we
move to the second step of the ex post facto analysis: whether the
challenged restrictions are “so punitive either in purpose or effect
as to negate [Alabama’s] intention to deem” the restrictions civil.
Smith, 538 U.S. at 92 (internal quotation marks omitted). We
consider each restriction in turn. 25
25For ease of analysis, we consider the residency and employment provisions
of ASORCNA together because even in combination, we conclude that they
do not violate the Ex Post Facto Clause. We recognize, however, that if our
conclusion were different, we would be bound to preserve as much of the Act
as possible. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“A court
should refrain from invalidating more of the statute than is necessary.
Whenever an act of [the legislature] contains unobjectionable provisions
separable from those found to be unconstitutional, it is the duty of this court
to so declare, and to maintain the act in so far as it is valid.” (alterations
adopted) (internal quotation marks omitted)). Every statute codified as part of
the 1975 Code of Alabama, including ASORCNA, is subject to a strong
severability clause. See Ala. Code § 1-1-16 (“If any provision of this Code or
any amendment hereto, or any other statute, or the application thereof to any
person, thing or circumstances, is held invalid by a court of competent
jurisdiction, such invalidity shall not affect the provisions or application of this
Code or such amendment or statute that can be given effect without the
invalid provisions or application, and to this end, the provisions of this Code
and such amendments and statutes are declared to be severable.”).
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42 Opinion of the Court 15-10958
1. Mr. McGuire Failed to Carry His Heavy Burden to Prove
that the Residency and Employment Restrictions Are
Sufficiently Punitive in Purpose or Effect
We first consider whether Mr. McGuire has established by
the clearest proof that ASORCNA’s residency and employment
restrictions are sufficiently punitive in purpose or effect to override
the legislative intent that they be civil. After careful consideration,
we conclude that Mr. McGuire failed to carry the heavy burden
required to override the legislature’s stated nonpunitive intent.
a. Resemblance to a Traditional Punishment
Mr. McGuire argues that the residency and employment
restrictions, which jointly prohibit registrants from residing,
working, or volunteering within a 2,000-foot radius of any school
or childcare facility in Alabama, sufficiently resemble the
traditional punishment of banishment. We are not convinced.
With the first factor, we consider whether the statutory
scheme imposes what has been regarded in our history and
tradition as punishment. This type of “historical survey can be
useful because a State that decides to punish an individual is likely
to select a means deemed punitive in our tradition, so that the
public will recognize it as such.” Smith, 538 U.S. at 97. But a
statutory restriction need not be identical to a traditional
punishment for this factor to be satisfied. The relevant question is
whether the challenged provision sufficiently “resemble[s]” or is
“analogous” to a historical and traditional form of punishment. Id.USCA11 Case: 15-10958 Date Filed: 10/03/2022 Page: 43 of 81
15-10958 Opinion of the Court 43
at 97, 99; see also W.B.H., 664 F.3d at 855 (explaining that we
consider whether a restriction “resemble[s] historical and
traditional forms of punishment”). The amount of resemblance
required must be something more than “initial resemblance.” See
Smith, 538 U.S. at 98 (“Any initial resemblance to early
punishments is, however, misleading. Punishments such as
whipping, pillory, and branding inflicted physical pain and staged a
direct confrontation between the offender and the public. Even
punishments that lacked the corporal component, such as public
shaming, humiliation, and banishment, involved more than the
dissemination of information.”).
The question we face here is whether the residency and
employment restrictions bear a sufficient resemblance to the
traditional punishment of banishment. Banishment dates back
more than 4,000 years. See Wm. Garth Snider, Banishment: The
History of Its Use and a Proposal for Its Abolition Under the First
Amendment, 24 New. Eng. J. on Crim. & Civ. Confinement 455,
459 (1998). It is a form of punishment contained in the Code of
Hammurabi, Mosaic law, the Old Testament Book of Esther, the
Laws of Manu, and the T’ang Code. Id. at 459–60. It became most
familiar to Americans in the early 1700s, when the United Kingdom
passed the Transportation Act of 1718 and banished around 50,000
of its criminals to America. Id. at 461–62.
As its history reflects, banishment punishes by “expell[ing]”
a person “from the community.” Smith, 538 U.S. at 98. Sometimes
it has been referred to as “exile, deportation, [or] relegation.”
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44 Opinion of the Court 15-10958
United States v. Ju Toy, 198 U.S. 253, 269 (1905) (Brewer, J.,
dissenting). Whatever the name, it was considered a punishment
of the “severest sort.” Id. at 273. Those who suffered it could
“neither return to their original community nor, reputation
tarnished, be admitted easily into a new one.” Smith, 538 U.S. at
98. Banished offenders were rendered “absolutely dead in law” and
“entirely cut off from society.” 1 William Blackstone,
Commentaries on the Laws of England *132.
Although the residency and employment restrictions limit
where registrants may live or work, we hold that the restrictions
do not sufficiently resemble the traditional punishment of
banishment to be considered punitive. Registrants are not totally
prohibited from entering the exclusion zones that ASORCNA
creates. It is true that they may not reside, work, or volunteer in
the exclusion zones. But they remain able to enter exclusion zones
for other purposes. For example, they may go into exclusion zones
to see health care providers, visit friends or family, eat meals, shop,
or worship. Indeed, a registrant may visit the same location in an
exclusion zone every day, so long as he does not spend more than
four hours a day in the place on three or more consecutive days or
on ten or more aggregate days during a calendar month and does
not indicate an intention to live there. See Ala. Code § 15-20A-
4(20). In addition, the Attorney General concedes that registrants
are permitted to work in jobs that require them to perform some
tasks inside exclusion zones. For example, the Attorney General
says a registrant working as a delivery person may drop off
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15-10958 Opinion of the Court 45
packages at locations inside exclusion zones and a registrant
working as a landscaper may tend to yards inside exclusion zones.
Mr. McGuire nevertheless argues that the residency and
employment restrictions resemble banishment because they
“effectively” bar registrants from the City of Montgomery.
Appellant’s Br. at 17. We assume for purposes of this appeal that
restrictions prohibiting registrants from entering exclusion zones
for some, but not all, purposes could in some circumstances
resemble banishment. But Mr. McGuire has not shown that
ASORCNA’s residency and employment restrictions operate to
effectively bar registrants from Montgomery.
In arguing that the residency and employment restrictions
effectively cast registrants out of Montgomery, Mr. McGuire points
to two categories of evidence. First, he points to evidence about
the difficulties he faced in finding a home or job outside the
exclusion zones. Second, he points to evidence supporting the
district court’s finding that the residency and employment
restrictions excluded registrants from more than 80 percent of the
housing stock and jobs in Montgomery. 26
26Mr. McGuire’s argument assumes that he can carry his heavy burden to
show that the residency and employment restrictions in their necessary
operation resemble banishment through evidence addressing the effect of
these restrictions on registrants in his community of Montgomery, without
establishing that the statewide restrictions also have a similar effect in other
parts of Alabama. We do not decide whether this assumption is correct
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46 Opinion of the Court 15-10958
Mr. McGuire’s evidence about his individual circumstances
and the particular difficulties that he faced in finding compliant
housing and work outside of the exclusion zones does not establish
that the residency and employment restrictions resemble
banishment. In relying on this evidence, Mr. McGuire effectively
treats his ex post facto claim as an as-applied challenge in which he
can establish a constitutional violation through evidence about the
restrictions’ application solely to him. But the Supreme Court’s
decision in Young forecloses the as-applied avenue. The Court
made clear that we cannot evaluate whether a restriction is
punitive “by reference to the effect that [it] has on a single
individual.” Young, 531 U.S. at 262.
Setting aside evidence of the restrictions’ effects on Mr.
McGuire personally, we consider his other evidence. He argues
that the residency and employment restrictions effectively cast
registrants out of Montgomery because they make approximately
80 percent of the housing stock and 85 percent of the jobs off limits
to registrants.
The district court found that the residency and employment
restrictions seriously limit registrants’ housing and employment
options in Montgomery, and these findings are not clearly
because, even assuming Mr. McGuire could carry his burden by introducing
evidence only as to Montgomery, he failed to establish by the clearest proof
that the residency and employment restrictions exclude registrants from
Montgomery in a way that resembles banishment.
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15-10958 Opinion of the Court 47
erroneous given the evidence in the record. But even so, we cannot
say that Mr. McGuire established that the restrictions are so severe
that they resemble banishment and effectively cast registrants out
of the community. The evidence of record demonstrates that
registrants have remained able to find housing and jobs in
Montgomery. As the district court found, of the approximately 430
registrants in Montgomery, only three were homeless. This means
that more than 99 percent of the individuals required to register in
Montgomery were able to find housing. Approximately half of the
registrants in Montgomery were able to find jobs. And of the half
who were not working, the district court explained that some were
not actively seeking work (perhaps because they were retired,
attending school, or physically unable to work). The question is not
whether there are houses or jobs off-limits to registrants because of
the exclusion zones; the question is whether there are houses or
jobs sufficiently open to them notwithstanding the exclusion
zones. Obviously there are, and Mr. McGuire does not point to any
evidence that the available houses or jobs are so undesirable that
they should not be counted.
Nothing in ASORCNA bars registrants from going into
exclusion zones for any purpose besides employment or
establishing a residence, as defined in the statute. And ASORCNA
does not restrict registrants from going into non-exclusion zones as
much as they like, as long as they aren’t conducting an “overnight
visit” with a minor. See Ala. Code § 15-20A-4(14); id. § 15-20A-
11(d).
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48 Opinion of the Court 15-10958
ASORCNA does not banish registrants from the jurisdiction,
whether a city or a state, or “expel[] [them] from the community.”
Smith, 538 U.S. at 98. It does not cut them off from interacting with
other adults, or even with minors during the daytime. As the
district court explained, registrants are “not barred from
frequenting any part of the city during the day.” McGuire v.
Strange, 83 F. Supp. 3d 1231, 1253 (M.D. Ala. 2019) (emphasis
added). And “any part” includes all of the exclusion zones.
Registrants may enter the exclusion zones for any purpose
except residency or employment there, so long as they do not
exceed the specified frequency and duration limits. Mr. McGuire’s
evidence about the restrictions’ effects on housing and
employment prospects for registrants does not establish that
registrants are effectively cast out of Montgomery in a way that
resembles banishment. 27
27 We note the Sixth Circuit’s decision holding that a Michigan law establishing
exclusion zones for sex offenders resembled banishment. See Doe v. Snyder,
834 F.3d 696, 701–02 (6th Cir. 2016). But the Michigan law barred registrants
from engaging in a broader range of conduct in the exclusion zones. It
prohibited registrants not only from living or working in exclusion zones but
also from “loitering” in these areas. Id. at 698 (internal quotation marks
omitted). It also effectively barred registrants from working any job that
required “traveling from jobsite to jobsite” because “work will surely take
place within a school zone at some point.” Id. at 702. In contrast, ASORCNA
imposes no bar on loitering, and registrants may hold jobs that occasionally
require them to perform tasks inside, or to cross through, an exclusion zone.
Given the differences, even after considering the Sixth Circuit’s analysis, we
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15-10958 Opinion of the Court 49
b. Affirmative Disability or Restraint
We next ask whether the residency and employment
restrictions impose an affirmative disability or restraint. We accept,
and the Attorney General seems to concede, that these restrictions
impose some affirmative disability or restraint by limiting where
registrants may live or work.
In considering whether the legislative scheme imposes an
affirmative disability or restraint, we ask “how the effects of the
[law] are felt by those subject to it.” Smith, 538 U.S. at 99–100. If
the restraint imposed is only “minor and indirect, its effects are
unlikely to be punitive.” Id.In Smith, the Court concluded that Alaska’s registration and
notification scheme imposed no affirmative disability or restraint.
The Court began by noting that because the scheme imposed no
physical restraint, it did not “resemble the punishment of
imprisonment, which is the paradigmatic affirmative disability or
restraint.” Id. The Court further concluded that the scheme did not
impose any other type of affirmative disability or restraint. It
explained that Alaska’s scheme “[did] not restrain activities sex
offenders may pursue” and left them “free to change jobs or
are not persuaded that Alabama’s residency and employment restrictions
resemble banishment. Cf. Shaw v. Patton, 823 F.3d 556, 567–68, 577 (10th Cir.
2016) (holding that a 2,000-foot residency restriction did not cause the plaintiff
to be “expelled from a community” although he was restricted from living in
some areas, and the statute also contained a 500-foot loitering provision).
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50 Opinion of the Court 15-10958
residences,” meaning they could “live and work as other citizens.”
Id. at 100–01. The Court determined that the record contained no
evidence that the Alaska Act had “led to substantial occupational
or housing disadvantages for former sex offenders that would not
have otherwise occurred through the use of routine background
checks by employers and landlords.” Id. at 100.
In this case, the district court found that ASORCNA’s
residency and employment restrictions imposed “direct . . .
restraints and disabilities.” McGuire, 83 F. Supp. 3d at 1258. But the
imposition of an affirmative disability or restraint “does not
inexorably lead to the conclusion that the government has imposed
punishment.” Hendricks, 521 U.S. at 363 (internal quotation marks
omitted). Rather, we must consider “the degree of the restraint
involved in light of the legislature’s countervailing nonpunitive
purpose,” meaning we also must consider “whether the law is
rationally connected to a nonpunitive purpose, and whether it is
excessive in relation to that purpose.” Doe v. Miller, 405 F.3d 700,
721 (8th Cir. 2005). As we explained, Mr. McGuire presented
evidence that the residency and employment restrictions impose
some housing and occupational disadvantages on registrants in
Montgomery by limiting where they can live and work. All
residency and employment restrictions do. But as we explain in
more detail below, ASORCNA’s residency and employment
restrictions are rationally connected to a nonpunitive purpose and
are not excessive in relation to that purpose. After weighing the
degree of disability imposed and the legislature’s nonpunitive
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15-10958 Opinion of the Court 51
purpose, we conclude that the affirmative disability or restraint
imposed by the residency and employment restrictions is not
sufficiently punitive to override the legislature’s expressed intent to
create a civil, nonpunitive scheme. See Shaw v. Patton, 823 F.3d
556, 570 (10th Cir. 2016) (concluding that Oklahoma’s 2,000-foot
residency restriction did “not amount to a disability or restraint
that has a punitive effect”).
c. Traditional Goals of Punishment
Mr. McGuire argues that the residency and employment
restrictions are punitive because they further two traditional goals
of punishment: deterrence and retribution. But the restrictions do
not have such a strong deterrent or retributive effect that it renders
them punitive.
Whether the statutory scheme “promotes the traditional
aims of punishment” is the third factor the Supreme Court
considered in Smith. 538 U.S. at 97. The traditional aims, or
theories, of punishment are deterrence and retribution. See
Hudson v. United States, 522 U.S. 93, 101 (1997).
The deterrence theory of punishment refers to “the
prevention of criminal behavior by fear of punishment.”
Deterrence, Black’s Law Dictionary (10th ed. 2014). The Supreme
Court’s decision in Smith tells us little about how to determine
whether a statutory scheme furthers deterrence. Alaska conceded
that its registration and notification scheme promoted deterrence,
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52 Opinion of the Court 15-10958
so the Court did not need to decide the question. Smith, 538 U.S.
at 102.
The residency and employment restrictions promote the
goal of deterrence, Mr. McGuire contends, by imposing an
additional penalty for past sex offenses and thus preventing future
crimes. We accept that the restrictions in some sense function as a
deterrent by preventing future crime. As the statutory text reflects,
the Alabama legislature intended the restrictions to protect
children by preventing future sex offenses, suggesting that the
legislature understood the restrictions would prevent, or deter,
future crimes. See Ala. Code § 15-20A-2(1), (5).
Even though the residency and employment restrictions
have some deterrent effect, we cannot say that they are so punitive
that they override the legislature’s intent to enact a civil scheme.
The registrants in Smith pointed to the concession that Alaska’s
scheme promoted deterrence to argue that the law was punitive.
But the Court rejected the argument as “prov[ing] too much.”
Smith, 538 U.S. at 102. Because “[a]ny number of governmental
programs might deter crime without imposing punishment,” the
Court cautioned, “[t]o hold that the mere presence of a deterrent
purpose renders such sanctions criminal would severely
undermine the Government’s ability to engage in effective
regulation.” Id. (alteration adopted) (internal quotation marks
omitted).
The retribution theory of punishment reflects that it is
“fitting and just that one who has caused harm to others should
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15-10958 Opinion of the Court 53
himself suffer for it.” Wayne R. LaFave, Substantive Criminal Law
§ 1.5(a)(6) (2d ed. 2003). “A statute is retributive if it is intended to
express condemnation for a crime and to restore moral balance.”
Shaw, 823 F.3d at 571.
Mr. McGuire argues that the residency and employment
restrictions advance the goal of retribution because the restrictions
“are not tailored to the crime, the offender, the victim, the length
of time since the crime, or any other metric,” and thus they must
be “a blunt and indiscriminate tool designed simply to punish
registrants for past offenses.” Appellant’s Suppl. Br. at 38.
The residency and employment restrictions in ASORCNA
may have a retributive effect, to some extent. The restrictions are
imposed on registrants solely because of their earlier criminal
convictions, prompting one court to infer that they reflect societal
condemnation for a registrant’s underlying crime. See Shaw,
823 F.3d at 571. But we find any expression of condemnation
insufficiently clear or strong to negate the legislature’s stated
nonpunitive intent.
The fact that the statutory scheme may have had a
retributive effect did not convince the Supreme Court in Smith that
the scheme was so punitive in effect that it overrode the
legislature’s civil intent. 538 U.S. at 102. Under Alaska’s registration
scheme, the scope of a registrant’s reporting requirement
depended solely on the nature of his underlying crime or crimes. A
person who committed a single, non-aggravated sex crime was
required to register annually as a sex offender for 15 years. Id. at 90.
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54 Opinion of the Court 15-10958
But a person who committed an aggravated sex offense, or two or
more sex offenses, was required to register quarterly as a sex
offender for life. Id. Because the duration of the duty to register
depended on the nature of the sex offender’s underlying crime
rather than an individualized assessment of the risk he posed, the
Ninth Circuit held that Alaska’s registration requirement had a
retributive purpose and was punitive in effect. Id. at 102.
The Supreme Court disagreed. It acknowledged that the
Alaska statute differentiated among registrants based on the nature
of the underlying criminal conduct—whether the offense was
aggravated or repeated. Id. Still, the Court determined that the
Ninth Circuit “was incorrect to conclude that the Act’s registration
obligations were retributive.” Id. The Court explained that the
registration requirement was “reasonably related to the danger of
recidivism” in a way that was “consistent with the regulatory
objective.” Id. The Court also recognized: “The legislature’s
findings are consistent with grave concerns over the high rate of
recidivism among convicted sex offenders and their dangerousness
as a class.” Id. at 103. “The risk of recidivism posed by sex offenders
is frightening and high.” Id. (internal quotation marks omitted).
Although Alabama imposes the restrictions on registrants as
a class without making individualized risk assessments, following
Smith, we conclude that “[t]he Ex Post Facto Clause does not
preclude a State from making reasonable categorical judgments
that conviction of specified crimes should entail particular
regulatory consequences.” Id. As we explain below, the restrictions
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15-10958 Opinion of the Court 55
have a rational connection to a nonpunitive purpose and are not
excessive.
d. Rational Connection to a Nonpunitive Purpose
We next consider whether the residency and employment
restrictions lack a rational relationship to a nonpunitive purpose.
This inquiry is a most—if not the most—significant factor. Smith,
538 U.S. at 102. 28 In Smith, the Supreme Court held that this factor
was satisfied when the purpose of the sex offender registration and
notification legislation was to protect public safety by “alerting the
public to the risk of sex offenders in their community.” Id. at 102–
03 (alteration adopted) (internal quotation marks omitted). We
conclude that ASORCNA’s residency and employment restrictions
are likewise consistent with the nonpunitive purpose of promoting
public safety.
The Attorney General argues that the residency and
employment restrictions protect public safety because (1) sex
offenders are likely to commit future offenses against children, and
(2) the restrictions prevent future sex offenses against children by
keeping registrants away from children. Mr. McGuire disagrees
and says that the record evidence established that sex offenders
have lower recidivism rates than the Attorney General suggests
and that creating zones of exclusion does not actually protect
28We have described this factor “as the most ‘significant’ one in the ex post
facto analysis.” Waldman v. Conway, 871 F.3d 1283, 1294 (11th Cir. 2017)
(emphasis added) (quoting Smith, 538 U.S. at 102).
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56 Opinion of the Court 15-10958
children from future sex crimes. Importantly, though, with respect
to this factor, the question is not whether the weight of the
evidence shows that sex offenders are likely to recidivate or
whether residency and employment restrictions in fact prevent
future sex crimes. Instead, our inquiry is limited to whether it
would be rational for a legislature to draw these conclusions. Given
the narrow scope of our inquiry, we find a rational connection to a
nonpunitive purpose here.
To begin, we conclude it was rational for the Alabama
legislature to conclude that sex offenders pose a risk of committing
future sex crimes against children. The Attorney General points to
research in the record showing that sex offenders generally pose a
greater threat of committing future sex crimes than the general
population does, including research showing that sex offenders are
four times more likely than non-sex offenders to be rearrested for
a sex crime after release from prison.
Mr. McGuire responds that social science research in the
record indicates that sex offenders may have lower recidivism rates
than previously thought. But we need not resolve this dispute
about the relative rate of recidivism for sex offenders. Again, to
apply this factor, we simply ask whether it was rational for the
Alabama legislature to conclude that sex offenders are more likely
than the general population to commit future sex crimes. And
based on evidence in this record, we cannot say that it was
irrational.
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Mr. McGuire also argues that the residency and
employment restrictions lack a rational relationship to the State’s
legitimate purpose because, he asserts, registrants whose previous
crimes involved adult victims are unlikely to commit future sex
offenses against children. Record evidence reflects, however, that
sex offenders are not specialists with respect to the gender and age
of their victims. This is not to say that sex offenders whose prior
offenses involved adults pose the same risk of committing future
sex offenses against minors as do sex offenders whose prior offenses
involved minors. But, again, because there is some evidence that
adult sex offenders pose a greater threat to children than does the
general population, we cannot deem irrational the Alabama
legislature’s conclusion that children are protected by restraints on
sex offenders whose previous victims were adults.
Next, we consider whether residency and employment
restrictions are a reasonable way to protect children from future
sex offenses. The assumption underlying these restrictions is that
limiting registrants’ access to public areas that children frequent
will reduce crime. The Attorney General introduced into evidence
a study showing that removing registrants from the areas near
schools and childcare centers reduced crime. Mr. McGuire points
to other evidence showing that most sex crimes against children
are committed not by a stranger who happens to encounter a child
in public but instead by someone the child knows—which calls into
question whether broad exclusion zones actually protect children
from sex crimes. Mr. McGuire’s expert testified, and other evidence
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58 Opinion of the Court 15-10958
in the record supports, that there is no significant relationship
between a person reoffending and his proximity to schools or day
care.
The Attorney General presented evidence showing that
residency and employment restrictions reduce the risk of future
crimes, and we afford great deference to the Alabama legislature’s
statement in ASORCNA that it intended for the Act to protect
public safety, not to impose punishment. See Ala. Code §§ 15-20A-
2(1) (“[T]he number of sex offenders continues to rise. The
increasing numbers coupled with the danger of recidivism place
society at risk.”); 15-20A-2(3) (“Homeless sex offenders are a group
of sex offenders who need to be monitored more frequently for the
protection of the public. Homeless sex offenders present a growing
concern for law enforcement due to their mobility.”); 15-20A-2(5)
(noting that residency and employment restrictions “further[] the
primary governmental interest of protecting vulnerable
populations, particularly children”). Mr. McGuire failed to
establish by the clearest proof that the residency and employment
restrictions lack a rational connection to the nonpunitive purpose
of protecting the public. This factor weighs against finding that
these restrictions are punitive in effect.
e. Excessiveness
The final factor requires us to consider whether Mr.
McGuire has met his burden to show that ASORCNA’s residency
and employment restrictions are excessive. A restriction is not
excessive so long as the State has chosen a reasonable means to
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achieve its nonpunitive objective. See Smith, 538 U.S. at 105. In this
inquiry, we do not ask whether the legislature made the “best
choice possible” to achieve its nonpunitive aim. Id. As the Supreme
Court has cautioned, “[a] statute is not deemed punitive simply
because it lacks a close or perfect fit with the nonpunitive aims it
seeks to advance.” Id. at 103.
On appeal, Mr. McGuire argues that the residency and
employment restrictions are excessive for three reasons: (1) they
apply to all registrants for life; (2) other state laws are less severe;
and (3) the restrictions caused Mr. McGuire to be homeless and
unable to find a job. After considering these arguments, we
conclude that Mr. McGuire has not carried his burden.
First, Mr. McGuire argues that the residency and
employment restrictions are excessive because they apply to
registrants for life. We understand Mr. McGuire to be saying that
the restrictions are excessive because they apply to all registrants as
a class without any individualized risk assessment.
The Supreme Court rejected a similar argument in Smith.
The registrants argued that Alaska’s registration scheme was
excessive because it applied to all convicted sex offenders without
regard to their future dangerousness. Id. But the Court rejected this
argument, explaining that the Ex Post Facto Clause permits a State
to make “reasonable categorical judgments that conviction of
specified crimes should entail particular regulatory consequences”
and to “legislate with respect to convicted sex offenders as a class,
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rather than require individual determination of their
dangerousness.” Id. at 104.
We thus cannot say that the residency and employment
restrictions are excessive simply because Alabama applied them to
registrants as a class without making any individual determinations
about dangerousness. Importantly, as we explained above, the
legislature could reasonably try to advance its goal of protecting
the public by creating a categorical rule that subjects registrants to
residency and employment restrictions. See Part VI-B-1-c & d;
Shaw, 823 F.3d at 576 (holding that Oklahoma’s residency
restriction was not excessive even though it created “a categorical
rule for sex offenders”); Miller, 405 F.3d at 722 (rejecting argument
that Iowa’s residency restriction was excessive because it applied to
registrants as a class).
Second, Mr. McGuire argues that the residency and
employment restrictions are excessive when combined because
they are more severe than the restrictions imposed by other
states. 29 This argument rests on the premise that a state’s restriction
may be shown to be excessive merely because of its severity in
29 It appears that the other states’ laws that impose both residency and
employment restrictions establish smaller exclusion zones, which extend
between 300 and 1,000 feet around schools and daycare centers. See, e.g.,
O.C.G.A. § 42-1-15 (geographic residency and employment restrictions with
1,000-foot exclusion zones); Mont. Code Ann. § 45-5-513 (geographic
residency and employment restrictions for “high-risk sexual offender[s]” with
300-foot exclusion zones); Tenn. Code Ann. § 40-39-211 (geographic residency
and employment restrictions with 1,000-foot exclusion zones).
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relation to other states’ restrictions or because other states have
chosen less restrictive means to achieve their regulatory purpose.
But Mr. McGuire cites no authority holding that such a showing
satisfies a plaintiff’s burden. And we are not persuaded by this
argument, which seems in tension with the role of the states as
“laboratories for experimentation” that may “devise various
solutions where the best solution is far from clear.” United States
v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see
also Smith, 538 U.S. at 105 (explaining that “[t]he 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,” but instead
“whether the regulatory means chosen are reasonable in light of
the nonpunitive objective”).
Third, Mr. McGuire says the residency and employment
restrictions are excessive because of the difficulty he had finding a
job or a house outside the exclusion zones. With this argument Mr.
McGuire again seeks to establish that the residency and
employment restrictions are punitive in effect through evidence of
the law’s effect on himself alone. But, as we explained above,
Supreme Court precedent forecloses this argument. See Young,
531 U.S. at 262.
On the record before us, we conclude that Mr. McGuire did
not establish by the clearest proof that the residency and
employment restrictions are so punitive in purpose or effect that
they override the Alabama legislature’s stated nonpunitive intent.
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Accordingly, we affirm the district court’s determination that the
retroactive application of the residency and employment
restrictions does not violate the Ex Post Facto Clause.
2. Mr. McGuire Failed to Carry His Heavy Burden to Prove
that the Homeless Registration Requirement Is
Sufficiently Punitive in Purpose or Effect
Next, we address ASORCNA’s homeless-reporting
requirement. As a refresher, the Act requires homeless registrants
to report in person every week and to identify the locations where
they resided during the previous week and plan to reside in the
upcoming week. See Ala. Code § 15-20A-12(b), (d). After
considering the Mendoza-Martinez factors, we conclude that Mr.
McGuire failed to establish by the clearest proof that the homeless
registration restriction is so punitive in purpose or effect as to
negate the legislature’s intent to deem it civil.
a. Resemblance to a Traditional Punishment
Mr. McGuire argues that the homeless registration
requirement resembles the traditional punishment of probation or
parole. 30 We disagree.
30 Although in Smith the Supreme Court discussed parole, it did not consider
whether parole qualified as a traditional or historical punishment. See 538 U.S.
at 101–02 (considering whether reporting requirements imposed an
affirmative disability or restraint similar to probation or parole, not whether
probation or parole had been regarded in our history and tradition as a
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Probation and parole are closely related punishments.31
Individuals on probation and parole “do not enjoy the absolute
liberty to which every citizen is entitled, but only conditional
liberty properly dependent on observance of special probation [or
parole] restrictions.” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)
(alteration adopted) (internal quotation marks omitted). Probation
and parole involve a series of mandatory conditions, which may
include requiring a person to report regularly to law enforcement
and to comply with other conditions including maintaining
employment, obtaining consent from a probation or parole officer
before moving or changing jobs, and abstaining from drugs or
alcohol. See Shaw, 823 F.3d at 565. When a probationer or parolee
violates the conditions of his probation or parole, the supervising
officer seeks revocation in a proceeding that is part of the original
punishment). We assume for purposes of this appeal only that parole would
qualify as a traditional or historical punishment. See Shaw, 823 F.3d at 565.
31Parole refers to “[t]he conditional release of a prisoner from imprisonment
before the full sentence has been served” and generally requires “that the
parolee regularly report to a supervising officer for a specified period.” Parole,
Black’s Law Dictionary (11th ed. 2019). Probation refers to “[a] court-imposed
criminal sentence that, subject to stated conditions, releases a convicted
person into the community instead of sending the criminal to jail or prison,
usu[ally] on condition of routinely checking in with a probation officer over a
specified period of time.” Probation, Black’s Law Dictionary (11th ed. 2019).
Succinctly, “[p]arole is based on good conduct in the penitentiary while
probation is set as a substitute for incarceration.” 59 Am. Jur. 2d Pardon &
Parole § 8 (2016).
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64 Opinion of the Court 15-10958
offense. See Smith, 538 U.S. at 102; Griffin, 483 U.S. at 874; Black v.
Romano, 471 U.S. 606, 611 (1985).
It is certainly true that registrants, like probationers and
parolees, are subject to periodic reporting requirements. But
ASORCNA’s homeless registration requirement does not so
closely resemble probation or parole that “the public [would]
recognize” it as a punishment. Smith, 538 U.S. at 97. The homeless
registration requirement is markedly different from probation and
parole in two ways. First, the registration requirement is limited to
a reporting. It does not entail the type of supervision that is a
hallmark of probation and parole. Homeless registrants are not, for
example, required to maintain employment, obtain consent before
moving or changing jobs, or abstain from drugs or alcohol. Second,
the consequences of violating the homeless reporting requirement
are different from the consequences of probation and parole
violations. With probation and parole, a violator of a term or
condition of supervision may be imprisoned for the original crime.
See Romano, 471 U.S. at 609, 611. By contrast, if a homeless
registrant fails to comply with the weekly reporting requirement,
he may be subjected to a criminal prosecution for violation of
ASORCNA, separate and apart from his original offense. See Ala.
Code § 15-20A-12(f); see also Smith, 538 U.S. at 101–02.
b. Affirmative Disability or Restraint
The second factor requires us to consider whether the
homeless reporting requirement imposes an affirmative disability
or restraint. Even though the in-person weekly reporting
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requirement imposes an affirmative disability or restraint, we
cannot say that the requirement is punitive.
In assessing whether the weekly, in-person reporting
requirement imposes an affirmative disability or restraint, we look
to precedent addressing whether other sex offender registration
schemes imposed these burdens. In Smith, the Supreme Court held
that Alaska’s scheme requiring yearly or quarterly registration by
mail imposed no affirmative disability or restraint. 538 U.S. at 91,
100–101. Likewise, in W.B.H., we held that a federal law requiring
sex offenders to register in person four times per year imposed no
affirmative disability or restraint. See 664 F.3d at 857–58. Even
though the in-person reporting requirement was “inconvenient,”
we concluded that no affirmative disability or restraint resulted
because the quarterly in-person reporting requirement did not
prohibit registrants from changing residences, jobs, or student
status without prior approval and “only require[d] that changes be
reported.” Id. at 857.
The reasoning in Smith and W.B.H. perhaps suggests that
the homeless reporting requirement imposes no affirmative
disability or restraint. True, ASORCNA requires homeless
registrants to provide regular updates to law enforcement officers,
but they remain able to move into a fixed residence and to change
where they stay throughout the week without obtaining prior
approval. Still, ASORCNA’s weekly reporting requirement is more
burdensome than the registration schemes reviewed in Smith and
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W.B.H. because neither case considered a weekly reporting
requirement or its effect specifically on homeless individuals.
Given the reporting frequency, we are persuaded that the
homeless registration requirement imposes an affirmative
disability or restraint. But even considering this factor, we cannot
say that the homeless registration requirement is so punitive in
effect that it overrides the legislature’s nonpunitive intent. See
Hendricks, 521 U.S. at 363 (explaining that the imposition of an
affirmative disability or restraint does not necessarily mean that a
restriction is punitive). We must weigh the extent of the disability
or restraint that the weekly registration requirement imposes on
homeless registrants against the legislature’s nonpunitive purpose
of protecting the public. See Miller, 405 F.3d at 721. As we explain
below, the weekly registration requirement has a rational
connection to the nonpunitive purpose of protecting the public and
is not excessive in relation to that purpose. In the circumstances
before us, even though the law imposes an affirmative disability or
restraint, we conclude that it is not sufficiently punitive to negate
the legislature’s intent.
c. Traditional Goals of Punishment
Turning to the next factor, we ask whether the homeless
registration requirement furthers a traditional goal of punishment.
We see no sufficiently strong deterrent or retributive effect to
render the homeless registration requirement punitive.
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We accept that the requirement has a general deterrent
effect by potentially preventing future crime. Indeed, the Alabama
legislature expressly stated that it imposed the more frequent
reporting requirement for homeless registrants “for the protection
of the public,” Ala. Code § 15-20A-2(3), suggesting it understood
that the reporting requirement would prevent registrants who
were homeless from committing future crimes. But Smith
recognized that governmental programs might deter crime
without imposing punishment. 538 U.S. at 102. So it cannot be true
that the presence of some general deterrent effect establishes that
the registration requirement is punitive. Sex offender restrictions
and requirements generally are intended to protect the public by
reducing the number of future crimes that sex offenders commit.
If that made them punitive, none would survive judicial scrutiny.
See id. (“To hold that the mere presence of a deterrent purpose
renders such sanctions criminal would severely undermine the
Government’s ability to engage in effective regulation.” (alteration
adopted) (internal quotation marks omitted)).
We agree with Mr. McGuire that, like the residency and
employment restrictions, the homeless registration requirement
furthers the goal of retribution to some extent. See Shaw, 823 F.3d
at 572. For a restriction to be so retributive that it constitutes
punishment, though, the statute’s effect must “lack[] a reasonable
relationship to non[]punitive objectives.” Id. As we explain when
we apply the next factor, the Alabama legislature could rationally
set out to protect public safety by requiring weekly registration
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68 Opinion of the Court 15-10958
from homeless registrants. In light of the rational connection
between the reporting requirement and protecting public safety,
this factor weighs against a finding of punitive effect.
d. Rational Connection to a Nonpunitive Purpose
Without a doubt, Alabama’s homeless registration
requirement has a rational connection to a nonpunitive purpose.
As the Supreme Court recognized in Smith, requiring registrants
to report to law enforcement is rationally connected to the
legitimate, nonpunitive purpose of promoting public safety. See
538 U.S. at 102–03. It therefore is rational for a state to require
registrants to report periodically to law enforcement to verify their
information as well as to report when information changes—for
example, after changing where they stay.
Relatedly, because homeless registrants lack a fixed address,
they may be more transient than other registrants. To ensure that
law enforcement and the public have accurate information about
these registrants’ whereabouts and to protect public safety, a state
legislature could rationally conclude that homeless registrants need
to report more frequently. See Ala. Code § 15-20A-2(3) (“Homeless
sex offenders . . . need to be monitored more frequently for the
protection of the public.”). Whether or not we agree with the
legislature’s conclusion, it was not an unreasonable one. See Shaw,
823 F.3d at 572.
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e. Excessiveness
As to the final factor, Mr. McGuire has not shown that the
reporting requirement is excessive. Given the requirement’s
rational connection to a nonpunitive purpose, Mr. McGuire bears
the burden to show that the requirement is nonetheless excessive
in relation to this purpose. But he does not argue that the frequency
or manner of reporting imposed upon homeless registrants—in-
person reporting once per week—is excessive in light of this
nonpunitive purpose. 32
On the record before us, we conclude that Mr. McGuire
failed to establish by the clearest proof that the weekly reporting
requirement for homeless registrants is sufficiently punitive to
negate the Alabama legislature’s stated intention to enact a civil
regulatory scheme. We thus affirm the district court’s judgment
32On appeal, Mr. McGuire focuses his argument on why it was excessive for
Alabama to require homeless registrants who live in cities to report in person
twice per week (once each week to city law enforcement and once each week
to county law enforcement). See Appellant’s Br. at 34 (arguing that the
homeless registrant requirement is excessive because, due to the dual
reporting requirement, “homeless registrants must also report twice per week,
amounting to a minimum of 112 registrations per year”). But the Alabama
legislature has removed the homeless registrants’ dual reporting requirement.
See 2015 Ala. Laws 463. As explained above, we limit our analysis to the
version of ASORCNA currently in effect, which requires homeless registrants
to report 56 times per year (four quarterly registrations and 52 weekly
registrations). See supra Section IV.
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that the weekly reporting requirement does not violate the Ex Post
Facto Clause.
3. Mr. McGuire Failed to Carry His Heavy Burden to Prove
that the Travel Notification Requirement Is Sufficiently
Punitive in Purpose or Effect 33
Next is ASORCNA’s travel notification requirement.
ASORCNA requires a registrant to provide notice to law
enforcement before he may “temporarily leave[]” his county of
residence for three or more consecutive days. Ala. Code § 15-20A-
15(a). After applying the Mendoza-Martinez factors, we conclude
that Mr. McGuire has failed to show by the clearest proof that this
requirement is punitive.
Mr. McGuire argues that the travel notification provision
resembles probation or parole because it (1) bars registrants from
spontaneous travel by requiring them to give notice at least three
business days before traveling and (2) requires registrants to
receive permission before traveling. But because ASORCNA, as
33 We continue to weigh the same factors to evaluate the remaining challenged
provisions. But because the parties’ arguments for each of the remaining
challenged provisions are less complex, we cease using separate subheadings
as we discuss each factor.
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amended, imposes neither restriction, we hold that it does not
resemble probation or parole. 34
First, Mr. McGuire contends that the travel notification
provision restricts registrants from any form of spontaneous travel
because they must notify law enforcement at least three business
days before traveling. But he slightly misreads ASORCNA with
respect to domestic travel. The law permits registrants to give
notice within three business days of such travel. Id. §§ 15-20A-4(9),
15-20A-15(a). Because a registrant may give notice immediately
before departing on a trip, we reject Mr. McGuire’s argument that
the provision resembles probation or parole by restricting
spontaneous travel.
Mr. McGuire also argues that because he must disclose in
advance where he will be staying, he cannot spontaneously decide
to stay at a different hotel or in a different town. Mr. McGuire
argues that innocuous changes in travel plans may trigger felony
violations. But barring registrants from making spontaneous
changes to their travel plans does not mean the travel notification
requirement resembles probation or parole. Only “knowing[]”
violations of the travel restrictions are punishable as felonies. Ala.
Code § 15-20A-15(h). Also, allowing a registrant to travel to a
destination different from the one disclosed in advance would
34 Aswe have mentioned, permission to travel is no longer required in light of
the 2017 amendments to ASORCNA, but notification of intent to travel is
required. See 2017 Ala. Laws 414.
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thwart the regulatory purpose of informing local authorities where
the registrant would be and allowing them to inform law
enforcement in that other location.
Mr. McGuire contends that the travel notification provision
resembles probation or parole because it requires registrants to
obtain permission from law enforcement before traveling. Under
the amended version of ASORCNA, however, no permission is
required. A registrant must report to his county sheriff to
“complete and sign a travel notification document” before
traveling outside his county of residence for three or more days. Id.§ 15-20A-15(a). But ASORCNA gives the sheriff no discretion or
authority to forbid a registrant who completes the travel
notification form from leaving the county. Id. § 15-20A-15(a), (d).
Mr. McGuire’s argument that law enforcement might do so rests
on unfounded speculation. We therefore reject his argument that
this provision resembles probation or parole.
Turning to the second factor, the travel notification
provision places some burden on registrants by requiring them to
report in person before traveling. But because ASORCNA, in its
current form, requires registrants to report in person to law
enforcement only once before a trip, we cannot say that the
reporting requirement imposes a burden rising to the level of an
affirmative disability or restraint. See W.B.H., 664 F.3d at 857
(addressing why in-person reporting requirement did not impose
affirmative restraint).
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Now the third factor. Even if we assume that the travel
notification provision has some deterrent effect, that effect does
not make the provision punitive because the “mere presence” of a
deterrent effect does not make a statute punitive. See Smith,
538 U.S. at 102 (internal quotation marks omitted). Likewise, even
if the travel notification serves some retributive purpose, the
provision is not punitive because, as we conclude below, it has a
rational connection to a nonpunitive purpose and is not excessive.
See id.As to the fourth factor, the travel notification requirement
has a rational connection to a nonpunitive purpose. The Attorney
General argues that requiring a registrant to report travel outside
the county “[e]ncourages personal contact with law enforcement”
and “[p]rovides for continuity of contact between jurisdictions.”
Appellees’ Br. at 47. In requiring registrants to disclose their travel
plans to law enforcement shortly before traveling, the provision
serves these rational purposes.
With respect to the final factor, the travel notification
provision is not excessive. The provision appropriately serves the
purpose of protecting public safety by requiring that registrants
give notice shortly before traveling, with some flexibility (within
three days) about when the notification must occur. Because the
scope of the restriction is “reasonable in light of the nonpunitive
objective,” Smith, 538 U.S. at 105, it is not excessive.
After considering the relevant factors, we conclude that Mr.
McGuire has failed to establish by the clearest proof that the travel
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74 Opinion of the Court 15-10958
notification restriction is so punitive in purpose or effect that it
overrides the legislature’s stated nonpunitive intent.
4. Mr. McGuire Failed to Carry His Heavy Burden to
Prove that the Direct Community Notification
Requirement Is Sufficiently Punitive in Purpose or Effect
The last provision of ASORCNA Mr. McGuire challenges is
the requirement that local law enforcement notify a registrant’s
neighbors that a sex offender plans to establish or has established a
residence nearby. Looking to the Supreme Court’s decision in
Smith, we conclude that Mr. McGuire has failed to show by the
clearest proof that this provision is punitive.
Mr. McGuire argues that the direct community notification
requirement resembles a traditional shaming punishment. Some
historical punishments, like forcing an offender to wear a sign
broadcasting his offense, were meant to inflict public disgrace. See
Smith, 538 U.S. at 97–98. The required community notification
bears at least an initial resemblance to traditional shaming
punishments. When a registrant establishes a new residence, local
law enforcement is to mail or hand deliver to a registrant’s
neighbors a flyer that discloses the registrant’s name, address,
photograph, and status as a sex offender. 35 See Ala. Code §§ 15-20A-
35 ASORCNA also provides for a second type of community notification
through the State’s maintenance of an online database for the public to access
information about registrants. See Ala. Code § 15-20A-8(a). The Supreme
Court held in Smith that including a registrant’s information in an online
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8(a), 15-20A-21(a), (b). We recognize that a registrant will likely
experience a degree of humiliation and public disgrace when these
flyers are distributed to his neighbors. See Smith, 538 U.S. at 98(recognizing registrants may face stigma as a result of the public
being notified about their status as sex offenders).
But Smith is clear that our inquiry does not end there. Even
though the registrants in Smith experienced public stigma due to
being listed in Alaska’s internet database of sex offenders, the Court
concluded that Alaska’s community notification scheme did not
resemble a historical shaming punishment. Id. at 98–99. This was
because registrants were not subjected to “face-to-face shaming.”
Id. at 98. Instead, any stigma resulted solely “from the
dissemination of accurate information about a criminal record,
most of which is already public.” Id. The Court analogized the way
database did not resemble a historical shaming punishment. 538 U.S. at 99.
Smith compels us to conclude that this aspect of Alabama’s community
notification is nonpunitive.
At least one court has determined that community notification through an
internet registry database has a punitive effect. See, e.g, Commonwealth v.
Muniz, 164 A.3d 1189, 1212 (Pa. 2017) (holding that Pennsylvania’s
community notification requirements violated the Ex Post Facto Clauses of
the United States and Pennsylvania constitutions when registrants were listed
on a public internet website because the publication provision “when viewed
in the context of our current internet-based world [is] comparable to shaming
punishments”). But even after considering this decision, we conclude that
Alabama’s use of an online registry is not punitive.
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the public could access information in the database to “a visit to an
official archive of criminal records” because a member of the public
would receive information about a sex offender only after
voluntarily taking several steps, including “going to the
Department of Public Safety’s Web site, proceed[ing] to the sex
offender registry, and then look[ing] up the desired information.”
Id. at 99.
The Supreme Court’s decision in Smith does not answer
directly whether ASORCNA’s direct community notification
resembles public shaming.36 On the one hand, Smith’s discussion
of “face-to-face shaming” suggests that ASORCNA’s notification
36 Nor does our decision in W.B.H. answer whether Alabama’s direct
community notification provision resembles a historical punishment. In
W.B.H., an individual who was required under SORNA to register due to a
juvenile conviction for a sex offense claimed that SORNA’s community
notification requirement was punitive. 664 F.3d at 851. He argued that
including his information in a government sex offender database on the
internet resembled a traditional shaming punishment because his underlying
juvenile conviction for a sex offense was not a public record. Id. at 856. We
concluded that placing his information in a database would not subject him to
face-to-face public shaming. Id. We stated that “[e]ven if the fact that a person
had been convicted of a sex offense as a youthful offender were to be
permanently sealed under state law, dissemination of that truthful
information in a [] registry” would not be punitive. Id. Because W.B.H.
involved a challenge to a community notification scheme that involved
dissemination of information about registrants through an internet database
only, however, the opinion did not address whether direct community
notification in which the government, unsolicited, sends out information
about a registrant’s presence to his neighbors would resemble a traditional
shaming punishment.
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scheme does not resemble a historical punishment because a
registrant ordinarily is not present when his neighbors receive the
notice disclosing his status as a sex offender. Id. at 98. On the other
hand, other parts of Smith’s analysis suggest that ASORCNA’s
requirement does resemble public shaming. Direct community
notification under ASORCNA is substantially different from the
public’s searching out information either online or in a physical
archive because information about registrants is automatically sent
to their neighbors without requiring the neighbors to take any
steps to obtain the information. See Ala. Code § 15-20A-21(a). So,
the Court’s analogy in Smith does not hold here.
We leave the difficult question whether the Act’s
community notification requirement sufficiently resembles
historical shaming for another day, however. Even assuming that
it does, Mr. McGuire still has not met his heavy burden to show
that it is punitive in purpose or effect when we consider the other
factors.
For the second factor, the direct community notification
requirement does not impose an affirmative disability or restraint.
The Supreme Court told us in Smith that a community notification
provision “imposes no physical restraint.” 538 U.S. at 100. And
although community notification “may have a lasting and painful
impact on the convicted sex offender, these consequences flow not
from [ASORCNA’s] . . . dissemination provision[], but from the
fact of conviction, already a matter of public record.” Id. at 101.
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The third factor, too, weighs in the Attorney General’s
favor. Even if the community notification requirement has some
deterrent effect, some deterrent effect does not establish that the
measure is punitive. See id. at 102. And even if the community
notification requirement in some sense promotes retribution, this
factor on its own does not make the requirement punitive. See id.It is beyond dispute that the direct community notification
provision meets the fourth factor, a rational connection to a
legitimate governmental purpose. It was rational for the Alabama
legislature to conclude that requiring law enforcement to notify
neighbors, schools, and childcare centers of a registrant’s presence
would serve the civil purposes of promoting public safety and
reducing recidivism.37 See Ala. Code § 15-20A-2(1) (“This release of
information creates better awareness and informs the public of the
presence of sex offenders in the community, thereby enabling the
public to take action to protect themselves.”). As the Supreme
Court said in Smith, such notification “has a legitimate nonpunitive
purpose of public safety, which is advanced by alerting the public
37 Some social science research in the record reflects that community
notification may reduce recidivism. At the same time, other research of record
suggests that community notification fails to reduce the recidivism rate for
registrants. At trial, Mr. McGuire’s expert discussed some evidence indicating
that notification can increase recidivism rates by making it more difficult for
registrants to find jobs and stable housing and to enter personal or business
relationships. We need not resolve the policy dispute about whether
community notification actually reduces recidivism because it was rational for
Alabama’s legislature to determine that it would.
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to the risk of sex offenders in their community.” 538 U.S. at 102–03
(alteration adopted) (internal quotation marks omitted).
Finally, considering the fifth factor, we conclude that the
means of notification Alabama has chosen—mailing and hand
delivering flyers identifying the registrant to nearby neighbors,
schools, and childcare centers—can reasonably be expected to
achieve Alabama’s nonpunitive objective of protecting the public.
There is no argument here that the direct community notification
requirement is excessive due to the formatting of the flyer or the
way that it displays information about the registrants. Indeed, a
flyer contains only factual information about a registrant, such as
his name, race, sex, date of birth, physical description, address, and
a brief description of his underlying offense. See Ala. Code §§ 15-
20A-8, 15-20A-21. The inclusion of this information is entirely
consistent with Alabama’s stated purpose: to inform the public
about the registrant’s presence in the community. See id. § 15-20A-
2(1).
After weighing the factors, we conclude that Mr. McGuire
failed to establish by the clearest proof that the direct community
notification requirement is so punitive in purpose or effect that it
overrides the Alabama legislature’s intent to create a civil
regulatory scheme. Even if we assume that the direct community
notification resembles a historical punishment, we hold that Mr.
McGuire failed to carry his heavy burden, particularly given the
community notification requirement’s rational connection to a
nonpunitive purpose that is not excessive in relation to that
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80 Opinion of the Court 15-10958
purpose. 38 Accordingly, we agree with the district court that the
retroactive application of the direct community notification
requirement does not violate the Ex Post Facto Clause.
VII. CONCLUSION
We VACATE the district court’s judgment insofar as it
involves Mr. McGuire’s claims that it is unconstitutional to apply
retroactively the following provisions of the Alabama Sex Offender
Registration and Community Notification Act, and REMAND
WITH INSTRUCTIONS that it dismiss those claims as moot: (1)
the identification-labeling requirement and (2) the dual registration
requirements for homeless registrants and for registrants providing
travel notification.
We AFFIRM the district court’s judgment insofar as it rejects
Mr. McGuire’s claims that it is unconstitutional to apply
retroactively the following provisions of ASORCNA: (1) the
residency and employment restrictions, (2) the homeless
registration requirement, (3) the travel notification requirement,
and (4) the community notification requirement. 39
38To the extent that it is necessary to do so, and we pass no judgment on
whether it is, we have also considered how the community notification
provision interacts with other provisions in ASORCNA and conclude that it is
not punitive in effect.
39Also pending before the Court is Mr. McGuire’s motion to dismiss the
Attorney General’s cross-appeal as moot. Because we have vacated and
remanded with instructions to dismiss as moot the part of the district court’s
judgment challenged in the cross-appeal, we DENY that motion.
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VACATED AND REMANDED IN PART, AFFIRMED IN
PART.