the court observed that the plaintiff had "marshaled strong reasons that notification would have devastating effects." Id. at 1266.
The cases take different approaches to analyzing whether the sex offender statutes in question constituted punishment. Virtually all, however, examine factors that can be grouped into four general areas: (a) the legislative intent, i.e., whether the intent of the legislature, viewed both subjectively and objectively, was to punish; (b) the design of the statute, i.e., whether the statute is designed and structured in a manner that suggests it is punitive; (c) the historical treatment of the measure in question, i.e., whether comparable measures historically were considered to be punishment; and (d) the effects of the law, i.e., whether the law has the effect of punishing. See, e.g., Artway, 81 F.3d at 1263; Roe v. Office of Adult Probation, 938 F. Supp. 1080, 1996 U.S. Dist. LEXIS 12801, 1996 WL 494770, at *8-12; W.P. v. Poritz, 931 F. Supp. at 1209; Doe v. Poritz, 662 A.2d at 404-06; People v. Afrika, 168 Misc. 2d 618, 648 N.Y.S.2d 235-6, 1996 N.Y. Misc. LEXIS 319, 1996 WL 496672, at *3.
Because I conclude that public notification is punishment, it is important that I consider carefully the reasoning of the cases that hold that public notification does not constitute punishment. These cases rely on some common themes, which are echoed by defendants and amici in their briefs on these cross-motions.
First, these courts conclude that, viewed subjectively and objectively, notification statutes are "remedial" laws that are not motivated by "punitive, penal purposes." W.P v. Poritz, 931 F. Supp. at 1214; see also, e.g., Doe v. Poritz, 662 A.2d at 404 ("legislative intent [behind Megan's Law] . . . is clearly and totally remedial"). These courts rely heavily on their conclusion that these laws serve "significant remedial goals," including as the "primary focus . . . the protection of children and others from previously-convicted sex offenders, near them in the community, who have been found to have a moderate or high risk of re-offense." W.P v. Poritz, 931 F. Supp. at 1214; accord Stearns v. Gregoire, slip op. at 13 (holding, on motion for preliminary injunction, that balance of hardships tipped in favor of public).
Second, these courts also conclude that the laws are narrowly designed to limit the circumstances under which information may be released and to prevent the abuse of information that is released. W.P. v. Poritz, 931 F. Supp. at 1212-13; Stearns v. Gregoire, slip op. at 9 ("the overall design and effect of the [Washington] statute indicate a non-punitive purpose"); Doe v. Poritz, 662 A.2d at 422 ("Here government has done all it can to confine [the] impact [of notification on offenders], allowing it only where clearly necessary to effect public safety . . . .").
Third, these courts distinguish community notification from the "historical shaming punishments," such as public flogging and "branding" with a "Scarlet Letter," on the basis that "Megan's Law is not the product of a lust for retribution; it is a measured attempt to achieve remedial with attendant deterrent goals." W.P. v. Poritz, 931 F. Supp. at 1217; accord People v. Afrika, 168 Misc. 2d 618, 648 N.Y.S.2d 235, 1996 N.Y. Misc. LEXIS 319, 1996 WL 496672, at *5.
Fourth, in considering the effects that notification laws have on sex offenders, these courts give little weight to the harsh results that resulted from notification because in their view such reactions were "not created by the registration and notification provisions of the sexual offenders registration law, but rather by the community's reaction to plaintiffs' prior conduct." Stearns v. Gregoire, slip op. at 10.
Indeed, these courts have relied heavily on the fact that much of the information disclosed through the public notification provisions was already available to the public through other means. Id. at 9-10 (public notification provisions do not create an "affirmative restraint or disability" because existing Washington law already permitted dissemination of conviction records); People v. Afrika, 168 Misc. 2d 618, 648 N.Y.S.2d 235, 1996 N.Y. Misc. LEXIS 319, 1996 WL 496672, at *5 ("criminal convictions are matters of public record"). These cases also conclude that a regulatory scheme is not rendered punitive merely because it results in some negative repercussions. See Doe v. Poritz, 662 A.2d at 388; accord W.P. v. Poritz, 931 F. Supp. at 1212-13, 1218-19; Stearns v. Gregoire, slip op. at 10-11; People v. Afrika, 168 Misc. 2d 618, 648 N.Y.S.2d 235, 1996 N.Y. Misc. LEXIS 319, 1996 WL 496672, at *5.
Although the cases that have held that notification is not punishment do consider other factors, they rely most heavily on one factor -- legislative intent. The cases repeatedly emphasize that the purpose of these laws is not to punish, but to protect. See, e.g., People v. Afrika, 168 Misc. 2d 618, 648 N.Y.S.2d 235, 1996 N.Y. Misc. LEXIS 319, 1996 WL 496672, at *6 ("Vigilance without vengeance . . . against those who have proven to be threats to society does not embody punishment.").
b. Other "Punishment" Decisions
Over the years the Supreme Court has struggled with the issue of whether other types of governmental action constituted "punishment," not only in the context of the Ex Post Facto Clause but also in the contexts of the Double Jeopardy Clause, the Excessive Fines Clause, and the Fifth and Sixth Amendment safeguards for individuals subjected to proceedings of a punitive nature. The Supreme Court's most recent decision on the subject of whether government action constituted "punishment" is United States v. Ursery, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996), decided on June 24, 1996, on which defendants and amici heavily rely.
In Ursery, the Supreme Court held that civil forfeiture was not "punishment" for purposes of the Double Jeopardy Clause. 116 S. Ct. at 2149. In reaching this conclusion, the Court applied a two-stage analysis. First, it reviewed Congress' intent in creating the civil forfeiture statute. Second, it analyzed "'whether the statutory scheme was so punitive either in purpose or effect as to negate' Congress' intention to establish a civil remedial mechanism." Id. at 2142 (quoting United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980)).
The Court took particular care in distinguishing three earlier cases that had addressed the definition of punishment. See 116 S. Ct. at 2142-47 (discussing Dep't of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994); Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993); United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989).
Specifically, the Court addressed the impact of these cases on its "traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause." 116 S. Ct. at 2147. After reviewing each case in detail, it concluded that these cases had not altered settled precedent holding that "in rem civil forfeitures are neither 'punishment' nor criminal for purposes of the Double Jeopardy Clause." 116 S. Ct. at 2149.
In reaching its holding, the Court emphasized three factors in particular. First, it noted that civil forfeiture historically had not been regarded as punishment. Id. at 2147, 2149; see also Gomez v. United States, 1996 WL 406781, No. CV-95-1020, at *2 (E.D.N.Y. July 3, 1996) (noting the Court's emphasis on historical nature of civil forfeiture). Second, it contrasted the in rem nature of civil forfeiture with the in personam proceedings at issue in the other "punishment" cases. Ursery, 116 S. Ct. at 2141; see also United States v. Reyes, 87 F.3d 676, 682 n.8 (5th Cir. 1996) ("The Ursery opinion . . . gives heavy emphasis to the in rem nature of the forfeitures there at issue, and distinguishes Halper and Kurth Ranch largely because those cases involved in personam proceedings."). Third, it found that, while having certain punitive aspects, civil forfeiture served important nonpunitive goals. Ursery, 116 S. Ct. at 2148.
Another important Supreme Court case relied on by defendants is De Veau v. Braisted, 363 U.S. 144, 4 L. Ed. 2d 1109, 80 S. Ct. 1146 (1960). There, a New York statute prohibited waterfront unions from collecting union dues if any officer was a convicted felon. Consequently, unions that had employed convicted felons prior to the law's passage were required to discharge them if they wished to continue collecting dues. The statute was attacked as an ex post facto law, and the issue presented was whether the statute was punitive. The Court concluded that it was not, holding:
The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession. . . . The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony.
363 U.S. at 160. As defendants point out, other statutes that imposed restrictions on convicted felons after the fact also have survived ex post facto challenges. See, e.g., Bae v. Shalala, 44 F.3d 489, 493-96 (7th Cir. 1995) (holding that provisions of Generic Drug Enforcement Act debarring convicted felons from participating in generic drug industry are remedial and not punitive); United States v. Huss, 7 F.3d 1444, 1447-48 (9th Cir. 1993) (Oregon law that retroactively revoked right of a convicted felon to carry "long guns" was not punitive but furthered substantial and legitimate safety interests); Wiley v. Bowen, 263 U.S. App. D.C. 140, 824 F.2d 1120, 1122 (D.C. Cir. 1987) (retroactive application of amendment to Social Security Act terminating eligibility of incarcerated felons to receive "old-age" social security benefits was not punishment); see also Hawker v. New York, 170 U.S. 189, 42 L. Ed. 1002, 18 S. Ct. 573 (1898) (revoking medical license is not punishment).
In California Dep't of Corrections v. Morales, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995), the Supreme Court rejected an ex post facto challenge to a statute that essentially reduced the entitlement of certain convicted felons (those convicted of more than one offense involving the taking of a life) to a parole eligibility hearing from once a year to once every three years. 115 S. Ct. at 1605. In doing so, however, the Court reiterated the proposition that the Ex Post Facto Clause "'forbids the application of any new punitive measure to a crime already consummated.'" 115 S. Ct. at 1601 (quoting Lindsey v. Washington, 301 U.S. 397, 401, 81 L. Ed. 1182, 57 S. Ct. 797 (1937)). The Court also made it clear that "the question of what legislative adjustments 'will be held to be of sufficient moment to transgress the constitutional prohibition' must be a matter of 'degree.'" 115 S. Ct. at 1603 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 70 L. Ed. 216, 46 S. Ct. 68 (1925)). Hence, the Court in Morales certainly contemplated that a court should look at the effects of a law in determining whether it amounted to punishment. See Artway, 81 F.3d at 1260 ("Morales makes clear that a law can constitute unconstitutional 'punishment' because of its effects.").
One final Supreme Court case that warrants discussion is Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). The issue presented was whether statutes divesting Americans of their United States citizenship were "essentially penal in character" so as to require that the respondents in such proceedings be provided the procedural rights guaranteed by the Fifth and Sixth Amendments, including the rights to due process, trial by jury, confrontation of witnesses, and assistance of counsel. 372 U.S. at 164. The Court held that the sanction of divestiture of citizenship was punitive in nature. In reaching that conclusion, the Court considered what it described as "the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character":
whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . .