UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE I, JANE DOE, and JOHN
DOE II,
No. 99-35845
Plaintiffs-Appellants,
D.C. No.
v. CV-94-00206-HRH
RONALD O. OTTE and BRUCE M.
OPINION
BOTELHO,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Alaska
H. Russell Holland, District Judge, Presiding
Argued and Submitted
August 1, 2000--Anchorage, Alaska
Filed April 9, 2001
Before: Dorothy W. Nelson, Stephen Reinhardt and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Reinhardt
_________________________________________________________________
COUNSEL
Darryl L. Thompson, Esq., Anchorage, Alaska, for plaintiffs-
appellants John Doe I and Jane Doe.
Verne Rupright, Esq., Wasilla, Alaska, for plaintiff-appellant
John Doe II.
Kenneth M. Rosenstein, Assistant Attorney General, Anchor-
age, Alaska, for the defendants-appellees.
_________________________________________________________________
4450
OPINION
REINHARDT, Circuit Judge:
This case involves an extremely sensitive and difficult
question, both from a social and legal standpoint. How may
society deal with convicted sex offenders after they have been
punished for their crimes? How can society protect itself
against future offenses and at the same time safeguard the
constitutional rights of persons who have fully paid the price
imposed by law for their crimes? The issues treated in the
Alaska Sex Offender Registration Act we consider here differ
only in degree from a host of other issues the citizens of this
country regularly face in trying to resolve the inherent ten-
sions between safety and freedom that exist in any democ-
racy.
As it turns out, we can decide the case before us without
having to resolve the most fundamental question posed by the
Alaska statute: that is, in light of the fundamental liberty
interest protected by the Due Process Clause, may rehabilita-
tion, or a judicial determination of lack of future risk, be
wholly ignored when imposing restrictive requirements and
obligations on persons who have committed a sexual offense
and been fully punished for their crimes? Instead, we base our
decision on a far narrower constitutional provision, the Ex
Post Facto Clause.
The plaintiffs in this action are convicted sex offenders
who have completed their sentences. They claim that Alaska's
sex offender registration and notification statute, enacted after
their convictions, both constitutes an ex post facto law and
violates their Due Process rights. U.S. Const. Article I, S 10;
Amend. 14. Because we conclude that, as to defendants
whose crimes were committed before its enactment, the
Alaska statute violates the Ex Post Facto Clause, we do not
resolve the question whether it also violates the Due Process
Clause.
4451
The Ex Post Facto Clause serves two purposes: it requires
fair notice, and, particularly relevant to the Alaska statute, it
acts to "restrai[n] arbitrary and potentially vindictive legisla-
tion." Weaver v. Graham, 450 U.S. 24, 29 (1981); Fletcher v.
Peck, 10 U.S. (6 Cranch) 87, 138 (1810) (the Ex Post Facto
Clause checks "the violent acts which might grow out of the
feelings of the moment"). Convicted sex offenders have good
reason to fear vindictive legislation. Their crimes are viewed
by society as an affront to the institution of the family. More
important, many of us fear that upon their release, sex offend-
ers will prey on our children and those of our neighbors.
The Ex Post Facto Clause expresses our commitment to
constrain the manner in which legislatures can address intense
fears of the type evoked by the return to the community of
convicted sex offenders. However, its check on legislative
power is quite limited -- it merely requires that punishment
be prospectively imposed. Because the Alaska Sex Offender
Registration Act does not comply with this minimal protec-
tion, we hold that it may not be applied to persons whose
crimes were committed before its enactment.
I. BACKGROUND
A. Factual background
On May 12, 1994, Alaska enacted the Alaska Sex Offender
Registration Act (sometimes referred to in this opinion as "the
Act" or "the Alaska statute"), which requires convicted sex
offenders to register with law enforcement authorities and
authorizes public disclosure of information in the sex offender
registry. 1994 Alaska Sess. Laws 41. In its implementing reg-
ulations, Alaska provides that it will, in all cases, post the
information from the registry for public viewing in print or
electronic form, so that it can be used by "any person" "for
any purpose." Alaska Admin. Code tit. 13, S 09.050(a)
(2000). Upon passage of the Act, two men required to regis-
ter, John Doe I and John Doe II, as well as John Doe I's wife,
4452
immediately brought a 42 U.S.C. S 1983 action against the
state commissioner for public safety and state attorney general
to enjoin its enforcement.
In 1985, nine years before the Alaska statute was enacted,
Doe I had entered a plea of nolo contendere to a charge of
sexual abuse of a minor after a court determined that he had
sexually abused his daughter for two years while she was
between the ages of nine and eleven. He was sentenced to
twelve years incarceration, of which four years were sus-
pended; he was released from prison in 1990. After being
released, Doe I was granted custody of his daughter, based on
a court's determination that he had been successfully rehabili-
tated. In making its determination, the court relied, in part, on
the findings of psychiatric evaluations concluding that Doe I
has "a very low risk of re-offending" and is "not a pedophile."
Also, since his release, Doe I married Jane Doe, who was
aware of Doe I's conviction for a sex offense.
Jane Doe is a registered nurse in Anchorage, and is well
known in the medical community there. She alleges that dis-
closure of her husband's criminal background will "under-
mine [her] professional relationships," and her ability to
obtain and care for patients.
The third plaintiff, John Doe II, entered a plea of nolo con-
tendere on April 8, 1984 to one count of sexual abuse of a
minor for sexual abuse of a 14-year-old child. He was sen-
tenced to eight years in prison, released in 1990, and subse-
quently completed a two-year program for the treatment of
sex offenders.
B. Prior Proceedings
The plaintiffs filed a complaint in the district court claim-
ing that the Alaska statute violates their federal and state con-
stitutional rights and sought leave to proceed under
pseudonyms. The district judge granted a preliminary injunc-
4453
tion requiring the plaintiffs to register under the act but pro-
hibiting public disclosure of the registration information; at
the same time he denied their request to proceed under pseud-
onyms. See Rowe v. Burton, 884 F. Supp. 1372, 1388 (D.
Alaska 1994).1 The plaintiffs appealed the denial of their use
of pseudonyms, and we dismissed the appeal because no final
judgment had been entered. On remand, the district judge dis-
missed the complaint when the plaintiffs would not amend it
to include their real names. The plaintiffs appealed the dis-
missal, and this court reversed, holding that the plaintiffs
could proceed under pseudonyms.
With the nomenclature issue resolved, the parties in 1998
filed cross-motions for summary judgment. A different dis-
trict judge granted the state's motion, and this appeal followed.2
C. The Alaska Sex Offender Registration Act .
The Alaska Sex Offender Registration Act was enacted at
a time when the state legislature perceived that Alaska's high
rate of child sexual abuse constituted a "crisis. " Legislators
heard testimony that Alaska's rate of child sexual abuse was
the highest in the country, that one-fourth of Alaska's prison
inmates were incarcerated for sexual offenses, and that in
1993, one hundred sex offenders were scheduled for release
from prison. On May 12, 1994, Alaska enacted its sex
offender registration statute, and subsequently amended it in
_________________________________________________________________
1 When the complaint was filed, Doe I used the pseudonym "James
Rowe." However, the court subsequently changed his pseudonym to "John
Doe I" after an individual named James Rowe complained that he was suf-
fering ill effects from Doe's use of the name in this matter.
2 We offer no comment on the tortured course of the proceedings in this
case or the fact that it is now seven years since the Alaska statute was
enacted. We observe only that we now add to this judicial odyssey by
deciding the case on the narrower of the two constitutional grounds, as
that affords appellants all the relief they seek. The question whether the
statute offends the rights of persons whose crimes were committed after
its enactment will have to wait for another day.
4454
1998 and 1999. 1998 Alaska Sess. Laws 81 & 106 (adding
crimes to the list of "sex offenses" requiring registration);
1999 Alaska Sess. Laws 54 (defining "conviction").
The Alaska statute has two main components: it requires
sex offender registration, with criminal penalties for failure to
register, and it authorizes full disclosure of information about
all offenders to the public. The registration provisions require
persons convicted of a broad range of offenses against chil-
dren and adults to register in person with local police authori-
ties. Such offenses include, for example, sexual assault and
possession of child pornography.3 Alaska Stat.
S 12.63.100(1)(B). Registrants must be photographed, provide
fingerprints, and provide the following information: name,
date of birth, address, place of employment, and information
about the conviction (specifically the crime, date of convic-
tion and place of conviction). Alaska Stat. S 12.63.010. Those
convicted of "aggravated" sex offenses must register in per-
son at their local police stations four times each year for life;
those convicted of other sex offenses must register in person
annually for fifteen years. Alaska Stat. S 12.63.020.
Information collected under the Alaska Sex Offender Reg-
istration Act is forwarded to the Alaska Department of Public
Safety, which maintains a central registry. Alaska Stat.
S 18.65.087. The parties agree that the Department of Public
Safety has published the collected information on its internet
website, making it readily available to all persons world-wide.
The information on the website, which can be searched by
name, partial address, zip code or city, includes the offender's
name, color photograph, physical description, street address,
_________________________________________________________________
3 Other offenses include child kidnaping, felony sexual assaults, sexual
abuse of a minor, incest, unlawful exploitation of a minor, promoting or
forcing a minor to engage in prostitution, distribution of child pornogra-
phy, felony indecent exposure, and misdemeanor indecent exposure where
the victim is under 16 and the defendant has a prior conviction for certain
offenses. Alaska Stat. S 12.63.100.
4455
employer address and conviction information, all under the
banner "Registered Sex Offender."
II. EX POST FACTO CLAIM
[1] The Ex Post Facto Clause prohibits states from enacting
any law that "changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when commit-
ted." Calder v. Bull, 3 U.S. (3 Dall.) 386, 391 (1798). There
is no question that the Alaska statute, by its terms, applies to
the plaintiffs even though their crimes were committed before
its enactment. However, the question when considering
whether a retroactively applicable statute is subject to the con-
straints of the Ex Post Facto Clause is not whether it "pro-
duces some ambiguous sort of `disadvantage,' . . . but . . .
whether [it] . . . increases the penalty by which a crime is pun-
ishable." California Dep't of Corr. v. Morales, 514 U.S. 499,
506 n. 3 (1995). The key issue in this case is whether or not
the Act is punitive, because only punitive statutes implicate
the Ex Post Facto Clause.
[2] Whether a statute should be classified as imposing pun-
ishment involves a two-step inquiry. We must first consider
whether, when enacting the Act, the Alaska legislature "indi-
cated either expressly or impliedly a preference for one label
or the other." United States v. Ward, 448 U.S. 242, 248
(1980). If we conclude that the legislature's intent was puni-
tive, our inquiry is at an end. Kennedy v. Mendoza-Martinez,
372 U.S. 144, 169 (1963). If we conclude that the legislature
did not intend the statute to be considered punitive, or that its
intent is ambiguous, then we must inquire whether the statute
is "so punitive either in purpose or effect" that it should be
considered to constitute punishment. Ward, 448 U.S. at 249.
This two-step inquiry is known as the "intent-effects test."4
Russell v. Gregoire, 124 F.3d 1079, 1086 (9th Cir. 1997).
_________________________________________________________________
4 The test is somewhat confusing, because the "effects" prong includes
an exploration into both the effects of the statute and its actual purpose.
The legislature's purpose is, of course, necessarily considered in the exam-
ination conducted under the first prong (the intent prong) of the test.
4456
In other Ex Post Facto challenges to state sex offender reg-
istration and notification laws, some courts of appeals have
analyzed separately the registration and notification provi-
sions while others have looked to the statute as a whole. Com-
pare Russell, 124 F.3d at 1087, 1089 (separately considering
the registration and notification provisions); Doe v. Pataki,
120 F.3d 1263, 1276 (2d Cir. 1997) (same) with Cutshall v.
Sundquist, 193 F.3d 466, 473-76 (6th Cir. 1999) (considering
registration and notification provisions together). The Alaska
legislature enacted the Alaska statute as a single piece of leg-
islation, and the notification and registration provisions oper-
ate in tandem. Neither the structure of the statute nor the
excerpts of the legislative debate included in the record indi-
cate that the provisions were viewed as serving separate pur-
poses. Nor does the state suggest on this appeal that the
provisions should be treated separately for purposes of our
constitutional analysis. Moreover, an Alaska intermediate
appellate court recently considered the statute as a whole
when deciding an Ex Post Facto challenge. See Patterson v.
Alaska, 985 P.2d 1007, 1011-13 (Alaska Ct. App. 1999).
After reviewing the structure of the statute and its legislative
history, we agree with the Alaska court that the proper
approach is to analyze the statute as a whole.5
_________________________________________________________________
5 Patterson concluded that neither the intent nor the effects of the Alaska
statute were punitive. Patterson, 985 P.2d at 1013. Determining "whether
a particular [statute] is civil or criminal is a matter of statutory construc-
tion." Ward, 448 U.S. at 248. While we regard as "authoritative" the con-
struction of a statute rendered by the state's highest court, Russell, 124
F.3d at 1090, we are not obligated to adopt that court's legal conclusion
with regard to whether a legislature's purpose in enacting a statute is to
punish. Kansas v. Hendricks, 521 U.S. 346, 365 (1997). In other words,
we defer to a state highest court's determination concerning what the stat-
ute means, but we determine independently whether that meaning renders
a statute punitive or not. Of course, we are not obliged to accept the Pat-
terson court's construction of the Alaska statute because Patterson is not
a decision of the Alaska Supreme Court. While we find some of its analy-
sis persuasive, we ultimately reach the opposite conclusion as to whether,
for Ex Post Facto purposes, the statute should be considered punitive.
4457
A. Intent of the Alaska Sex Offender Registration Act
[3] To determine the legislature's intent when enacting the
Alaska Sex Offender Registration Act, we consider the body's
declared purpose, the structure of the statute, and its design.
Id. at 1087. Here, this examination produces conflicting sig-
nals as to whether the legislature intended the Act to be
regarded as punitive.
One factor recently relied upon by the Supreme Court in
determining whether a legislature intended a statute to be con-
sidered punitive is the statute's placement in the state code.
When considering a civil commitment statute for sexual pred-
ators, the Court explained that the state's intent was not puni-
tive on the basis of the fact that the provision was placed in
the state's civil code, rather than in its criminal code. Kansas
v. Hendricks, 521 U.S. 346, 361 (1997); see Femedeer v.
Haun, 227 F.3d 1244, 1249 (10th Cir. 2000); but see Cutshall
v. Sundquist, 193 F.3d 466, 474 (6th Cir. 1999) ("location
within criminal procedure laws does not necessarily indicate
an intent on the part of the legislature to punish"); Doe v.
Pataki, 120 F.3d 1263, 1277-78 (2d Cir. 1997) (finding intent
of statute non-punitive although it is placed in the state code's
"Corrections Law" volume). The Alaska statute's placement
provides conflicting signals as to whether the legislature
intended it to be regarded as punitive.
[4] The legislature codified the registration portion of the
Act within Title 12 of the Alaska Code, which is entitled
"Criminal Procedure," while codifying the notification provi-
sions in Title 18, entitled "Health, Safety and Housing." If the
statute were intended to be regarded as a non-punitive public
safety measure, one would expect that it would have been
placed entirely within the title of the Alaska code governing
"Safety": Title 18. Title 18 includes chapters concerning sex-
ual assault investigations (chapter 68); police protection
(chapter 65); and even a registration provision (chapter 75,
concerning licensing and control of dogs). Placement of the
4458
sex offender act's registration provisions in Title 12, suggests
that the legislature was more concerned with the fact that the
offenders are convicted criminals than with public safety admin-
istration.6
[5] While the placement of the Act within the Alaska's
code provides some evidence that it was, at least in part,
intended to be punitive, two aspects of its design, in particu-
lar, provide much stronger evidence of punitive intent. The
Act requires that when a defendant is sentenced for a sex
offense, the registration and notification provisions are to be
made a part of the criminal judgment against him. 1994
Alaska Sess. Laws 41, S 11. Alaska criminal judgments must
include the defendant's plea, the verdict or findings, and the
adjudication and sentence. Alaska Rule of Crim. P. 32(b). In
the case of someone convicted of a sexual offense,"the writ-
ten judgment must [also] set out the requirements of [the
Act]." Alaska Rule of Crim. P. S 32(c). Directing courts to
include the registration and notification requirements of the
Act in judgments evinces an intent that the application of its
provisions to the defendant be regarded as part of his punish-
ment for the crime, because the purpose of the judgment is to
set forth the crime and punishment.7
_________________________________________________________________
6 However, the fact that the notification provisions are placed in Title 18
suggests that the legislature's intent may have been non-punitive.
7 It could be argued that the legislature ordered courts to notify defen-
dants of the Act's provisions when they are convicted simply as a means
of providing notice to the defendants of its requirements. However, this
argument ignores the fact that the "notice" is made part of the judgment,
which is the legal statement of punishment. The Rule 32(b) requirements
do not require judgments to contain any information except that relating
to the crime and the punishment for the crime, even though notice of other
facts usefully could be communicated at that time. For example, the rule
does not require notice of the right to appeal as part of the judgment. Such
notice must be given by the judge at the time of sentencing, but it is not
part of the official judgment against the defendant. Alaska Rule of Crim.
P. S 32.5. While the defendant only has thirty days to file an appeal, if he
is incarcerated at the time of conviction, he need not register as a sex
offender until 30 days before he is released from prison. Rule 32.5; Alaska
Stat. S 12.63.010(a)(1) (1999).
4459
Furthermore, the Act amends the state's rules of criminal
procedure to compel judges to advise defendants about the
Act's requirements before accepting guilty pleas. Alaska Rule
of Crim. P. S 11(c). Making notice of the registration require-
ments a prerequisite for an informed guilty plea strongly sug-
gests that the legislature acknowledges that the requirements
constitute punishment.
[6] While the structure and design of the statute indicate
that it is intended to be regarded as punitive, the Act's legisla-
tive findings indicate otherwise. Section 1 of the Alaska stat-
ute states:
"The legislature finds that
(1) sex offenders pose a high risk of reoffending
after release from custody;
(2) protecting the public from sex offenders is a
primary governmental interest;
(3) the privacy interests of persons convicted of
sex offenses are less important than the govern-
ment's interest in public safety; and
(4) release of certain information about sex offend-
ers to public agencies and the general public
will assist in protecting public safety."
1994 Alaska Sess. Laws 41, S 1.
These findings indicate that the legislature viewed the Act as
a measure designed to accomplish a non-punitive purpose --
protection of the public through the collection and release of
information. Patterson, 985 P.2d at 1011 (findings make clear
that legislature viewed "recidivism of sex offenders [as] a
problem," and sought to address the problem through "the
release of certain information").
4460
We recently considered whether Washington's sex offender
registration statute violated the Ex Post Facto Clause. See
Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997). In Russell,
we determined that Washington's far more narrowly drawn
and limited statute did not violate that Clause because it could
not be considered punitive. Id. at 1089, 1093. We looked to
legislative findings that included a statement that it is Wash-
ington's policy to better enable law enforcement "to protect
their communities by regulating sex offenders," and found
that statement conclusive of the fact that the intent of the law
was regulatory, not punitive. 124 F.3d at 1087. In the present
case, however, while the legislative findings provide some
support for the proposition that the Act is not intended to be
punitive, the findings are by no means conclusive. Here, as
we have explained above, unlike the Washington statute, the
structure and design of the Alaska Act support the contrary
conclusion: that the legislature intended that the statute be
punitive.
[7] Having carefully considered both the legislative find-
ings and the statute's structure and design, we conclude that
the Alaska legislature has not clearly expressed its intent as to
whether or not the Act should be considered punitive. Thus,
we now turn to the "effects" prong.
B. The Alaska Statute's Punitive Effect
When a legislature plainly states its intent that a statute is
not punitive, courts must "reject the legislature's manifest
intent only where a party challenging the statute provides the
clearest proof that the statutory scheme is so punitive either
in purpose or effect as to negate the State's intention." Hen-
dricks, 521 U.S. at 361 (internal quotations omitted); Russell,
124 F.3d at 1087. In this case, however, because we have con-
cluded that the legislative intent is unclear, the "clearest
proof" test does not apply and, in examining the statute's
effects, we apply ordinary and customary legal standards. See
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169 (1963).
4461
[8] Mendoza-Martinez instructs us to consider seven fac-
tors when applying the effects prong of the two-step test. Id.
("[a]bsent conclusive evidence of congressional intent as to
the penal nature or a statute, [the seven factors listed below]
must be considered in relation to the statute on its face").
1) whether the sanction involves an affirmative
disability or restraint;
2) whether it has historically been regarded as a
punishment;
3) whether it comes into play only on a finding of
scienter;
4) whether its operation will promote the tradi-
tional aims of punishment -- retribution and
deterrence;
5) whether the behavior to which it applies is
already a crime;
6) whether an alternative purpose to which it may
rationally be connected is assignable to it; and
7) whether it appears excessive in relation to the
alternative purpose assigned.
Mendoza-Martinez, 372 U.S. at 168-69.
We applied these factors in Russell in order to determine
whether Washington's narrowly drawn and strictly limited
sex offender registration statute violated the Ex Post Facto
Clause, and we held that it did not. Russell, 124 F.3d at 1089,
1093. Here, the application of the seven factors leads us to the
conclusion that Alaska's statute, which is far broader and far
more punitive in nature than Washington's, is designed to
4462
punish sex offenders, and thus does offend the Ex Post Facto
Clause.8
1. Affirmative disability or restraint
[9] The Alaska Sex Offender Registration Act imposes an
affirmative disability on the plaintiffs. First, its registration
provisions impose a significant affirmative disability by sub-
jecting offenders to onerous conditions that in some respects
are similar to probation or supervised release. Like Washing-
ton's sex offender registration statute, Alaska's requires
offenders being released from confinement to register. Alaska
Code S 12.63.010(a); Russell, 124 F.3d at 1082. However,
unlike the Washington statute, Alaska's requires sex offenders
such as the plaintiffs to re-register at police stations four times
each year every year of their lives. Alaska Code
S 12.63.010(d). Moreover, in order to do so, they must appear
in person at a police station on each occasion, and provide,
under oath, a wide variety of personal information, including
address, anticipated change of address, employer address,
vehicle description, and information concerning mental health
treatment for any "mental abnormality or personality disor-
der." S 12.63.010(b).
In Russell, we concluded that Washington's registration
provisions did not impose an affirmative disability or
restraint. Russell, 124 F.3d at 1088-89. However, as the state
acknowledges, Alaska's registration requirement is vastly
more burdensome than the one-time registration requirement
at issue in Russell. We held in Russell that Washington's
"simple registration" provision, involving a one-time only
registration (except when changing one's address), does not
work an affirmative disability or restraint. Russell, 124 F.3d
_________________________________________________________________
8 As we noted, supra, inRussell we required a showing of the "clearest
proof" because we determined that the legislature's manifest intent was
that the statute not be deemed punitive, while here, because the legislative
intent is unclear, we do not apply so burdensome a standard.
4463
at 1082, 1088. In part because Alaska's registration provision
is far more onerous, we reach a different conclusion here.
[10] Not only do the Alaska statute's registration provisions
impose an affirmative disability, but its notification provisions
do so as well. By posting the appellants' names, addresses,
and employer addresses on the internet, the Act subjects them
to community obloquy and scorn that damage them personally
and professionally. For example, the record contains evidence
that one sex offender subject to the Alaska statute suffered
community hostility and damage to his business after print-
outs from the Alaska sex offender registration internet website
were publicly distributed and posted on bulletin boards.
In reviewing a sex offender law that authorized public
inspection of sex offender records at police departments and
permitted newspapers or others to disseminate the informa-
tion, the Kansas Supreme Court concluded that the law
imposed a disability because "[t]he practical effect of such
unrestricted dissemination could make it impossible for the
offender to find housing or employment." Kansas v. Myers,
923 P.2d 1024, 1041 (Kan. 1996). Where the impact is sub-
stantially less severe, however, the disability is not such as to
warrant a finding that the statute is punitive. Such was the
conclusion in Cutshall, 193 F.3d at 471, where a Tennessee
statute limited disclosure of information to the amount
"deemed necessary . . . to protect the public concerning a spe-
cific sexual offender," and in Pataki, 120 F.3d at 1269-70,
where a New York act permitted such disclosure only on the
basis of an individualized assessment of the risk of recidi-
vism. Alaska's system of posting all sex offenders' informa-
tion on the internet is far closer to the statutory scheme in
Myers and, in fact, is likely to have a far greater impact on
offenders. Because the internet is much more accessible to the
public than records at police departments, the obloquy and
scorn noted in Myers are more certain to result.
[11] A statute also may be considered non-punitive where
the specific disability is narrow. In Hudson v. United States,
4464
522 U.S. 93 (1997), the Supreme Court held that a sanction
of "occupational debarment" from the banking industry for
those found to have misappropriated bank funds is not an "af-
firmative disability or restraint" because the disability is
severely limited. Hudson, 522 at 104. In contrast, in the pres-
ent case, the procedures employed under the Alaska statute
are likely to make the plaintiffs completely unemployable.
Alaska publishes the names and addresses of the registrants'
places of employment on its sex offender internet site, and
makes it simple for users of the site to search for the presence
of any sex offenders working at a particular place of employ-
ment. By doing so, it creates a substantial probability that reg-
istrants will not be able to find work, because employers will
not want to risk loss of business when the public learns that
they have hired sex offenders. This disability is far more sub-
stantial than the one at issue in Hudson, which merely
involved debarment from a single profession. Indeed, the
breadth of the impact of the Alaska statute provides strong
evidence that the statute's effect is punitive. See Myers, 923
P.2d at 1041 (sex offender statute that permits public disclo-
sure of offender's employment information imposes an affir-
mative disability).
The state argues that Russell compels the conclusion that
the Alaska statute's notification provisions do not impose an
affirmative disability. As noted earlier, however, Russell
involved a statute with a far more limited notification provi-
sion. The Washington statute we considered in Russell autho-
rizes release of information only when it has been determined
that the specific offender poses a risk of reoffending, and even
then, the information disclosed is much more limited than the
information Alaska discloses. Russell, 124 F.3d at 1082. Fur-
thermore, under the Washington act, disclosure is limited to
a narrow geographic area within the state of Washington,
whereas here the notification of a defendant's lurid past is
world-wide. Id. Moreover, when considering whether Wash-
ington's limited notification provisions posed an affirmative
disability, we "actively weigh[ed]" the harsh results of the
4465
community notification provisions, including "humiliation,
ostracism, public opprobrium, and the loss of job opportuni-
ties," but decided that the disability was not "so egregious" as
to prevent the court from concluding that the statute was regu-
latory. Russell, 124 F.3d at 1092.
In Russell, therefore, we did determine that the notification
provisions imposed an affirmative disability. We made this
clear by "actively weighing" the statute's consequences along
with the other Mendoza-Martinez factors. We ultimately con-
cluded, however, that the disability was insufficient to over-
come the clear legislative intent that the statute not be
punitive, particularly in light of some of the other relevant
Mendoza-Martinez factors and the applicability of the "clear-
est proof" standard.
[12] Considered as a whole, the Alaska statute's registra-
tion and notification provisions, impose a significant disabil-
ity on the plaintiffs. Both the registration and notification
provisions are far more burdensome than the provisions we
considered in Russell. Moreover, the standard of proof we
apply here is different than in our earlier case. When the
applicable provisions of the Alaska statute are considered
together, the first Mendoza-Martinez factor clearly favors
treating the Act as punitive.
2. Historical treatment
[13] Sex offender registration and notification statutes are
of fairly recent origin.9 Other courts considering such statutes
consider whether they are analogous to historical shaming
_________________________________________________________________
9 The first sex offender community notification statute was enacted by
Washington in 1990. Alan R. Kabat, Note, Scarlet Letter Sex Offender
Databases and Community Notification: Sacrificing Personal Privacy for
a Symbol's Sake, 35 Am. Crim. L. Rev. 333, 334-35 (1998). After the
1994 killing of Megan Kanka in New Jersey, such statutes became wide-
spread. Id.
4466
punishments. In Russell, we concluded that the provisions of
the Washington statute were not. Russell, 124 F.3d at 1092.
We reach the same conclusion here. Accordingly, the second
factor favors treating the statute as non-punitive.
3. Finding of scienter
The third Mendoza-Martinez factor is whether the statute's
provisions come into effect only upon a finding of scienter.
Mendoza-Martinez, 372 U.S. at 168. A defendant must be
convicted of a sex offense before the Alaska statute's provi-
sions become applicable, and those offenses generally require
a finding of scienter. However, some of the offenses that sub-
ject an offender to the Act's requirements are "strict liability"
offenses that can be committed whether or not the defendant
is aware of certain facts that make his conduct criminal. For
example, conviction for sexual abuse of a minor under 13
years of age does not require any showing that the defendant
knows that his victim is under that age. Alaska Stat.
SS 11.41.434; 11.41.445(b).
[14] Our inquiry when considering this factor is whether
the Act's requirements may be imposed only upon a finding
a scienter. Hudson, 522 U.S. at 104. While the Alaska statute
generally requires a finding of scienter, its provisions do not
become applicable only in such circumstance. Accordingly,
like the second Mendoza-Martinez factor, this factor supports
the conclusion that the Act is not punitive.
4. Traditional aims of punishment
When a statute promotes the traditional aims of punishment
-- retribution and deterrence, its effect is more likely to be
considered punitive. Id. This court has previously held that
Washington's statute, which is substantially less onerous than
Alaska's, "may implicate deterrence," Russell, 124 F.3d at
1091, and the Patterson court reached the same conclusion
with regard to the Alaska statute. Patterson, 985 P.2d at 1012.
4467
Accordingly, we conclude that the Act may provide a measure
of deterrence; the threat of being subjected to mandatory reg-
istration and, particularly, publicly branded a sex offender,
may presumably deter some persons who might otherwise
become offenders.
While the Alaska statute may have some deterrent effect,
it even more directly serves the other traditional aim of pun-
ishment -- retribution. It is primarily this objective that
causes us to weigh the fourth factor on the side of finding the
Act punitive. When the Russell court determined that the
Washington statute was not retributive, it relied in part on the
fact that the effect of the statute was not to "labe[l] the
offender as more culpable than before." 124 F.3d at 1091. The
Alaska statute, in contrast, mandates inclusion of the registra-
tion requirements in judgments of conviction, which are the
formal documents in which the state describes the defendant's
culpability. Alaska Rule of Crim. P. S 32(c). As part of their
sentences, sex offenders are notified that, included with the
punishment is the obligation to comply with the provisions of
the Alaska Sex Offender Registration Act.
Furthermore, the Act's registration obligations imposed on
sex offenders appear to be inherently retributive. The duty of
sex offenders to report quarterly to their local police stations
may be analogized to the duty imposed in a judgment of con-
viction on other defendants to report regularly to a probation
officer or to comply with the conditions of supervised release.
Such obligations are part of the punishment meted out
through a defendant's criminal sentence. United States v.
Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995).
Moreover, the duration of the Act's requirements provides
additional support for the conclusion that retribution is an
objective of the Act. For offenses that are not classified as
aggravated, the Act requires registration for 15 years.10 Alaska
_________________________________________________________________
10 When an offender is no longer required to register, the state removes
his name from the registry, and therefore his information is no longer dis-
closed to the public. Alaska Stat. S 18.65.087(d)(4).
4468
Stat. S 12.63.020(a). However, for each year that an offender
fails to comply with the registration requirements, the 15 year
period is extended by an additional year. Alaska Stat.
S 12.63.020(a)(2). The relationship between failing to renew
the registration annually and the statute's non-punitive public
safety objective -- preventing recidivism -- seems tenuous.
On the other hand, if registration is punitive, requiring the
offender actually to go to the police station and register 15
times (even if it takes more than 15 years when the offender
skips some years) achieves a statutory purpose, because the
penalty for the sex offense includes the requirement of annual
in-person registration 15 separate times.
Finally, that the length of the reporting requirement appears
to be measured by the extent of the wrongdoing, not by the
extent of the risk posed, indicates that the requirement is
retributive. Those convicted of "aggravated" sex offenses
must register four times each year for the rest of their lives,
while those convicted of other sex offenses need only register
annually for a period of 15 years. See Alaska Stat.
S 12.63.020(a). However, it appears that the classification by
the Alaska Sex Offender Registration Act of certain offenses
as "aggravated" and others as not "aggravated" relates to the
gravity of the wrongdoing, not the risk of recidivism posed by
the wrongdoers. For example, the difference between first
degree sexual abuse of a minor, which is an aggravated sexual
offense, and second degree sexual abuse of a minor, which is
not considered aggravated, is that the former prohibits some-
one over 16 from sexually penetrating a child under 13 while
the latter prohibits someone over 16 from sexually penetrating
a child between the ages of 13 and 15. See Alaska Stat.
SS 11.41.434; 11.41.436. This difference appears clearly to be
related to the degree of wrongdoing, not the risk of recidi-
vism.
[15] In sum, the Act appears to further the fundamental
aims of punishment -- retribution and deterrence. While the
Act's requirements are not labeled as punishment, their inclu-
4469
sion in the criminal judgment and the nature and extent of
their duration suggest that they serve as retribution for the
commission of sex offenses. Furthermore, this court has pre-
viously recognized that sex offender registration and notifica-
tion laws may deter those inclined to commit (at least some)
sex offenses. See Russell, 124 F.3d at 2091. Therefore, this
Mendoza-Martinez factor supports the conclusion that the
Act's effect is punitive.
5. Applies to criminal behavior
That a statute applies only to behavior that it already crimi-
nal is an additional factor supporting the conclusion that its
effect is punitive. Mendoza-Martinez, 372 U.S. at 168. As the
state concedes, the Alaska statute applies only to those "con-
victed" of specified offenses. Alaska Stat. S 12.63.100(5).
In Russell, the fact that the statute applied to Washington
sex offenders who were not found guilty of a crime as well
as to those who were convicted was central to our conclusion
that the Act was not punitive. 124 F.3d at 1091. Washington's
statute specifically subjects sex offenders incompetent to
stand trial and persons civilly committed as sexual psycho-
paths to its registration and notification requirements. Id.
When considering Utah's sex offender registration and notifi-
cation law, the Tenth Circuit concluded that the "criminal
behavior" factor favored classification of the statute as non-
punitive because it applied to those found not guilty on the
ground of "mental incapacity." Femedeer , 227 F.3d at 1252
& n. 3.
[16] In contrast to Washington's and Utah's statute, Alas-
ka's applies only to those found "guilty," including those
found "guilty but mentally ill." Alaska Stat.S 12.63.100(3). It
does not cover those found "not guilty by reason of insanity,"
or otherwise not convicted of a crime or those civilly commit-
ted.11 Id. Unlike other states' sex offender registration laws,
_________________________________________________________________
11 In Alaska, one who does not understand "the basic nature and quality
of his or her conduct" is considered "not guilty by reason of insanity,"
4470
the Alaska statute's harsh requirements can be imposed only
on individuals who have suffered an actual criminal convic-
tion in a court of law. Thus, this factor also provides support
for the conclusion that the Act's effect is punitive.
6. Non-punitive purpose
[17] The appellants concede, as they must, that there is an
alternative non-punitive purpose, as well as a punitive one,
that can rationally be connected to the Act. That purpose, of
course, is public safety, which is advanced by alerting the
public to the risk of sex offenders in their communities. The
existence of a non-punitive alternative purpose for the Alaska
statute, protecting public safety, unquestionably provides sup-
port, indeed the principal support, for the view that the statute
is not punitive for Ex Post Facto Clause purposes. 12
7. Excessiveness
The final, and, in this case, a highly significant, factor in
the Mendoza-Martinez analysis is whether the Alaska Sex
_________________________________________________________________
while one who does not "appreciate the wrongfulness of his or her con-
duct" is considered "guilty but mentally ill. " Alaska v. Patterson, 740 P.2d
944, 946-49 (Alaska 1987).
12 Russell states in dictum that even if the non-punitive purpose were
merely ancillary to the overriding punitive purpose of the statute, we may
still conclude that the statute is not punitive, presumably on the basis of
a clear legislative intent and an assessment of the other Mendoza-Martinez
factors. See Russell, 123 F.3d at 1086. We need not examine that dictum
here, because in the present case, the legislative intent is unclear and the
other factors, taken as a whole, support the conclusion that the Act is puni-
tive. We note, moreover, that under Mendoza-Martinez, the finding that an
alternative non-punitive purpose exists, ancillary or not, clearly does not
end the inquiry. Rather, in such cases, the court must proceed to deter-
mine, inter alia, whether the alternative purpose "appears excessive in
relation to the alternative purpose." Mendoza-Martinez, 372 U.S. at 169.
We undertake that step in the analysis in the subsection of the text that
immediately follows.
4471
Offender Registration Act "appears excessive in relation to
the alternative purpose assigned": public safety. Mendoza-
Martinez, 372 U.S. at 169. The appellants claim that the Act
is excessive in relation to its public safety purpose because it
is sweeping and excessive in several respects. They empha-
size that the scope of the statute is not limited to those who
the state determines pose a future risk to the community: they
point out specifically that, once convicted, it does not matter
whether a defendant can prove that he has been rehabilitated
and that he poses no threat of future criminal conduct. Under
the statute, a judicial determination of rehabilitation (such as
made in Doe I's case) is irrelevant, and even law enforcement
authorities are powerless to limit the widespread public distri-
bution of the injurious, and possibly outdated, information
that the statute provides for.
The statute at issue in Russell was much more limited than
the Alaska statute in numerous respects. Most important to
this part of our analysis, it only authorized release of "relevant
and necessary information" concerning certain sex offenders.
Russell, 124 F.3d at 1082. In Washington, information about
sex offenders was disseminated only if the authorities deter-
mined, on an individual basis, that the offender posed a risk
of recidivism. Id. (citing Washington v. Ward, 869 P.2d 1062,
1070 (Wash. 1994) (en banc) (in many cases, the legislature
intended that a sex offender's information would not be
released to the public)). Furthermore, in Russell, we found it
significant that Washington's statute authorized dissemination
of information about any particular sex offender only within
a "narrow geographic area." Russell, 124 F.3d. at 1082. In
contrast, in Alaska, information as to all sex offenders is made
available world-wide on the internet without any restriction
and without regard to whether the individual poses any future
risk. Broadcasting the information about all past sex offenders
on the internet does not in any way limit its dissemination to
those to whom the particular offender may be of concern.13
_________________________________________________________________
13 We note also that it does not appear that the legislature, when enacting
the Alaska Sex Offender Registration Act in response to concerns about
4472
With only one exception, every sex offender registration
and notification law that has been upheld by a federal Courts
of Appeals has tailored the provisions of the statute to the risk
posed by the offender.14 See Cutshall v. Sundquist, 193 F.3d
466, 474 (6th Cir. 1999) (Tennessee statute); Roe v. Office of
Adult Probation, 125 F.3d 47, 54 (2d Cir. 1997) (Connecticut
statute); E.B. v. Verniero, 119 F.3d 1077, 1098 (3d Cir. 1997)
(New Jersey statute); Doe v. Pataki, 120 F.3d 1263, 1269-70
(2d Cir. 1997)(New York statute). For example, with regard
to the Connecticut statute, the Second Circuit concluded that
it was not excessive because offenders who were convicted
before the statute's enactment are subject to the statute's noti-
fication provisions only if, based on an "individualized clini-
cal assessment," they are found to pose a "high risk" of
recidivism. Roe, 125 F.3d at 54. For offenders convicted after
the statute's enactment, the court pointed out, disclosure is
limited to specified members of the community, including the
victim and his family, the police, the offender's immediate
family, other occupants of the offender's residence, and treat-
ment providers, unless the individual offender is determined
to be "high risk." Id. at 50. Similarly, the Third Circuit upheld
_________________________________________________________________
child sexual abuse, made any attempt to determine which of the offenses
it classified as "sex offenses" were likely to involve recidivism (against
either adults or children) and thus which should be included in order to
serve the statute's non-punitive purpose -- public safety. Rates of recidi-
vism vary considerably depending on the specific sex offense committed.
See Jane A. Small, Who Are the People in Your Neighborhood? Due Pro-
cess, Public Protection, and the Sex Offender Notification Laws, 74
N.Y.U. L. Rev. 1451, 1458 (1999) (pedophiles, for example, have much
higher rates of recidivism than other sex offenders).
14 The only exception to this rule is found in an opinion that was filed
after oral argument in this case, Femedeer v. Haun, 227 F.3d 1244 (10th
Cir. 2000). That case concerned the Utah sex offender registration and
notification statute, which makes the state's entire sex offender registry
accessible on the internet. See id. at 1247-48. In that case, unlike here, the
Tenth Circuit examined whether the "clearest proof" demonstrated that the
effects of the statute were punitive, because the Utah legislature's manifest
intent was that the statute be regarded as non-punitive. Id. at 1249.
4473
the New Jersey statute after finding that New Jersey classifies
offenders by risk category, provides no public disclosure for
those who pose the least risk (45 percent of offenders) and
widespread disclosure only for those who pose the greatest
risk (5 percent of offenders). E.B., 119 F.3d at 1098.
In contrast, as we have noted, the Kansas Supreme Court
considered a sex offender registration and notification statute
that, like the Alaska statute, allowed unrestricted access to the
registration information regardless of risk. Kansas v. Myers,
923 P.2d 1024, 1041 (Kan. 1996). It concluded that the statute
had a punitive effect, and therefore was an unconstitutional ex
post facto law, because it was "excessive and beyond that
necessary to promote public safety." Id. at 1043. Surveying
other states' statutes, the Kansas Supreme Court concluded
that almost every other state limited access by means such as:
1) basing the type of community notification on the specific
risk level assigned to the individual offender (New Jersey,
New York); 2) only releasing information to those living in
close proximity to the offender (Louisiana); and 3) providing
information only to those inquiring about a specific person
(Iowa, North Carolina). Id. at 1029, 1038. It based its holding
that Kansas's broad notification provisions violated the Ex
Post Facto Clause on its conclusion that "of the sex offender
registration laws that have successfully overcome ex post
facto challenges, none have (sic) provided for unlimited pub-
lic access to the registered sex offender information." Id at
1036.
[18] Like the statute at issue in Myers, Alaska's statute is
exceedingly broad. The unlimited breadth of the Alaska stat-
ute weighs strongly in favor of a determination that its effect
is punitive. Indeed, the punitive effect caused by the exces-
siveness of the statute's provisions in relation to its non-
punitive purpose is exemplified by John Doe I's case. Con-
victed of sexual abuse of his minor daughter, Doe I was suc-
cessfully rehabilitated. After his release from prison, a state
court determined that he was not a pedophile, and that he
4474
posed a very low risk of reoffending. On that basis, the court
returned his minor daughter to his custody. Nevertheless,
under the Alaska statute's registration provisions, Doe I
would be forced to submit to in-person registration at his local
police department four times a year, every year, and, under its
notification provisions, he would be compelled forever to suf-
fer the unremitting social obloquy and ostracism that would
accompany his being publicly labeled a sex offender on Alas-
ka's world-wide internet website. Presumably, in any state
that does not provide for unlimited public disclosure of sex
offender information in all cases in which a defendant has
ever been convicted of a sex offense, the record of John Doe
I's past incest conviction would not be disseminated by state
officials to the world at large for the rest of his life.
8. Summary
[19] In sum, the Mendoza-Martinez test leads us to hold
that the Act's effect is sufficiently punitive that notwithstand-
ing the legislature's ambiguous intent, the Alaska statute
should be classified as punitive for Ex Post Facto Clause pur-
poses. Four of the seven actors favor this result. 15 Two factors,
particularly, demonstrate that the effect of this particular stat-
ute is to increase the penalty the law provided at the time Doe
I and Doe II's offenses were committed. First, there is the
substantial disability imposed by the Act. The registration
provisions, which require in-person registration at a local
police station where registrants must provide detailed infor-
mation four times each year for life in the case of some defen-
dants, and annually for 15 years in the case of others, are
extremely burdensome. This disability is exacerbated by the
public notification provisions that plaintiffs' uncontradicted
evidence demonstrates exposes all registrants to world-wide
obloquy and ostracism. Second, unlike the sex offender regis-
_________________________________________________________________
15 We note that our conclusion is not based on a simple equation in
which each factor is given equal weight. Rather, we consider the impor-
tance of each factor in relation to the legislative scheme we are examining.
4475
tration and notification statutes upheld by the Second, Third
and Sixth Circuits, as well as by this Circuit in Russell, the
Alaska statute is excessive in relation to its non-criminal pur-
pose. An offender cannot escape the Act's grasp no matter
how demonstrable it may be that he poses no future risk to
anyone, and no matter how final the judicial determination
that he has been successfully rehabilitated; in short, under the
Alaska statute, the requirements relating to disclosure of a
past offense are not related to the risk posed. Furthermore,
that the Act applies only to offenders who have been con-
victed of committing a crime, that its requirements are incor-
porated in the criminal judgment imposed, and that it
otherwise serves retributive ends, provides additional support
for our conclusion that the Alaska statute is punitive.
Three factors suggest that the Act is not punitive. The first
is the fact that sex offender registration and notification provi-
sions have not historically been regarded as punishment.
However, the fact that the Alaska statute is so much more
sweeping in its scope than comparable statutes in other states
leads us to limit the weight we place on this Mendoza-
Martinez factor. The second is that it is not imposed only
upon a finding of scienter. The relevance of this factor is to
assist in the determination of whether the conduct giving rise
to the sanction is the sort that traditionally subjects someone
to punishment, because in general, mens rea is an element of
a crime. In this case, however, given that the conduct that
does not require a finding of scienter, conviction of offenses
such as sexual abuse of a child under 13 years of age, is seri-
ous criminal activity, we do not believe that this factor lends
much support for the conclusion that the Act is not punitive.
The final factor is the fact that the Act has a non-punitive pur-
pose: protecting public safety. Here, we conclude that the
additional purpose, while of unquestioned importance, does
not serve to render a statute that is so broad and sweeping
non-punitive.
4476
No one Mendoza-Martinez factor is determinative, and
excessiveness, standing alone, would not be dispositive under
the Mendoza-Martinez test. Hudson v. United States, 522 U.S.
93, 101 (1997). Still, we place substantial weight on the fact
that the Act is far more sweeping than necessary to serve its
alternate purpose, promoting public safety. This is so not only
with respect to the undifferentiated scope of the Act but also
with respect to the severity of the disabilities it imposes.
When we weigh all the Mendoza-Martinez factors together,
we conclude, on balance, that for purposes of the Ex Post
Facto Clause, the effect of the Alaska statute is punitive.16
[20] Because the Alaska Sex Offender Registration Act
increases the punishment for sex offenses, the Ex Post Facto
Clause limits its application to those sex offenders whose
crimes were committed after its enactment. California Dep't
of Corr. v. Morales, 514 U.S. 499, 504-05 (1995). Doe I was
convicted in 1985, and Doe II was convicted in 1984. The
Alaska legislature enacted the Act in 1994. Therefore, the
Alaska statute's application to the appellants violates the Ex
Post Facto Clause.
III. APPELLANTS' OTHER CLAIMS
In addition to their Ex Post Facto Clause argument, plain-
tiffs claim that the statute violates their procedural and sub-
stantive Due Process Clause rights, as well as their federal
constitutional privacy rights. Because we conclude that the Ex
Post Facto Clause bars the application of the statute to Doe I
or Doe II, we need not consider these arguments. 17 Our failure
_________________________________________________________________
16 We recognize that applying a multi-factor test is frequently not an
entirely satisfactory method of resolving legal issues. Sometimes, how-
ever, it is the best approach available to courts. In any event, it is the
approach that the Supreme Court has held should be applied here. See
Russell, 124 F.3d at 1086-87.
17 In the complaint, Jane Doe I claims only that her privacy right, and
not her Ex Post Facto Clause right, has been violated. Because we con-
clude that Jane Doe I's husband, John Doe I, is not subject to the Alaska
statute, Jane Doe I will receive all of the relief that she seeks in her com-
plaint, and therefore we need not decide whether the Act violates her pri-
vacy right.
4477
to address them should not be taken, however, as an indica-
tion that we do not believe that they have merit. 18
IV. CONCLUSION
We conclude that the Alaska Sex Offender Registration Act
violates the Ex Post Facto Clause. We therefore REVERSE
the district court's orders granting summary judgment for the
state officials, and REMAND for further proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.
_________________________________________________________________
18 The state officials argue that our opinion in Russell forecloses the
appellants' claims, because in that case we held that the Washington sex
offender registration and notification statute does not implicate registrants'
federal privacy rights. See Russell, 124 F.3d at 1093-94. However, in Rus-
sell, we made clear that the plaintiffs "fail to explain precisely how the Act
violates [their privacy rights] beyond collating and releasing information."
Id. at 1093. We then rejected their privacy argument after explaining that
the mere "collection and dissemination of information" does not violate a
privacy interest or amount to a deprivation of liberty. Id. at 1094. In this
case, plaintiffs allege more that the mere collection and release of informa-
tion -- they assert that the state requires them to appear four times each
year at local police stations to answer a host of questions, and labels them
"sex offenders" on its internet website, which is accessible world-wide.
Furthermore, in contrast to the Washington statute, Alaska's brands plain-
tiffs sex offenders without any attempt to classify them by risk posed, or
to provide them with an opportunity to prove that they have been rehabili-
tated. While we do not decide whether the Alaska statute infringes on the
appellants' due process rights, we doubt that Russell fairly could be read
to stand for the exceedingly broad proposition urged by the state.
4478