Smith v. Doe (2003)

The Alaska Sex Offender Registration Act required mandatory registration of sex offenders and community notification.

Issue

Is a requirement that sex offenders register with law-enforcement authorities a retroactive punishment prohibited by the Ex Post Facto Clause?

Holdinfg

No. A requirement that sex offenders register with law-enforcement authorities is not a retroactive punishment prohibited by the Ex Post Facto Clause. In determining whether a regulatory scheme constitutes retroactive punishment prohibited by the Ex Post Facto Clause, the court must first determine whether the legislature intended to impose a punishment as opposed to a civil, nonpunitive regulatory scheme.

Excerpts

In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168-169, and nn. 22-28. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are "neither exhaustive nor dispositive," United States v. Ward, 448 U. S., at 249; 89 Firearms, 465 U. S., at 365, n. 7, but are "useful guideposts," Hudson, 522 U. S., at 99. The factors most relevant to our analysis are 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.

…

{Thomas concurrence]to reiterate that "there is no place for [an implementation-based] challenge" in our ex post facto jurisprudence. Seling v. Young, 531 U. S. 250, 273 (2001) (THOMAS, J., concurring in judgment). Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See id., at 273-274 ("[T]o the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the effect of its improper implementation"). As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining "the statute on its face." Hudson v. United States, 522 U. S. 93, 100 (1997) (internal quotation marks omitted).

The Court held that the “punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character . . . .”38 The Court then articulated seven factors it had considered in previous cases to determine the existence of punishment:

• whether the statute imposes an affirmative disability or restraint;
• whether the resulting sanction or burden has historically been regarded as punishment;
• whether the statute “comes into play only on a finding of scienter;”
• whether the statute promotes retribution and deterrence, traditional aims of punishment;
• “whether the behavior to which it applies is already a crime;”
• whether the statute is rationally connected to an alternative purpose other than punishment; and
• whether the statutory sanction or burden appears excessive in relation to the alternative 39

- in Com. v. Baker, 2009

ArtI.S9.C3.2 Ex Post Facto Laws,

No Bill of Attainder or ex post facto Law shall be passed.

Both federal and state governments are prohibited from enacting ex post facto laws,¹ and the Court applies the same analysis whether the law in question is a federal or a state enactment. When these prohibitions were adopted as part of the original Constitution, many persons understood the term ex post facto laws to embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.² But in the early case of Calder v. Bull,³ the Supreme Court decided that the phrase, as used in the Constitution, was a term of art that applied only to penal and criminal statutes. But, although it is inapplicable to retroactive legislation of any other kind,⁴ the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal.⁵ Every law that makes criminal an act that was innocent when done, or that inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.⁶ A prosecution under a temporary statute that was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute's duration for a violation committed prior thereto.⁷ Because this provision does not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post facto or not.⁸

State Ex Post Facto Laws

The prohibition against state ex post facto laws, like the cognate restriction imposed on the Federal Government by § 9, relates only to penal and criminal legislation and not to civil laws that affect private rights adversely.¹ Distinguishing between civil and penal laws was at the heart of the Court’s decision in Smith v. Doe² upholding application of Alaska’s Megan’s Law to sex offenders who were convicted before the law’s enactment. The Alaska law requires released sex offenders to register with local police and also provides for public notification via the Internet. The Court accords considerable deference to legislative intent; if the legislature’s purpose was to enact a civil regulatory scheme, then the law can be ex post facto only if there is the clearest proof of punitive effect.³

There are three categories of ex post facto laws: those which punish[ ] as a crime an act previously committed, which was innocent when done; which make[ ] more burdensome the punishment for a crime, after its commission; or which deprive[ ] one charged with crime of any defense available according to law at the time when the act was committed.⁸ The bar is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts.⁹

Double Jeopardy - Amdt5.2.1.2.4 Imposition of Multiple Punishments for the Same Offense

The Court is also quite deferential to legislative classification of recidivism sentencing enhancement factors as relating only to sentencing and as not constituting elements of an offense that must be proved beyond a reasonable doubt. Ordinarily, therefore, sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is not implicated. Sentencing enhancements do not punish a defendant for crimes for which he was not convicted, but rather increase his sentence because of the manner in which he committed his crime of conviction.⁸

…

Then in United States v. Powell, the Court rejected the argument that issue preclusion barred the acceptance of an inconsistent jury verdict that included an acquittal on a drug charge but guilty verdicts of using a telephone to caus[e] and faciliat[e] that same drug offense.⁴⁰ Reaffirming a precedent from more than a half a century before,⁴¹ the Powell Court held that the Government’s inability to invoke review, the general reluctance to inquire into the workings of the jury, and the possible exercise of lenity by the jury cautioned against allowing defendants to challenge inconsistent verdicts on issue preclusion grounds.⁴²

Several decades later, the Court extended the logic of Powell in Bravo-Fernandez v. United States.⁴³ In that case, a jury had returned inconsistent verdicts of conviction and acquittal with respect to two criminal defendants, but their convictions were later vacated for legal errors unrelated to the inconsistency.⁴⁴ The Court, recognizing Powell's conclusion that inconsistent verdicts do not indicate whether the acquittal was the result of mistake, compromise, or lenity,⁴⁵ held that re-prosecution on the counts on which a conviction was initially obtained could occur. According to the Court, because of the irrationality of the earlier inconsistent verdicts,⁴⁶ the criminal defendants failed to demonstrate that the first jury had actually decided that they did not commit the crime underlying the second trial.⁴⁷ As a result, while the government was prohibited from re-prosecuting the defendants in Bravo-Fernandez on the charges that had earlier resulted in an acquittal,⁴⁸ issue preclusion could not be used to prevent a second trial on the charges that had previously resulted in guilty verdicts.

United States v. Powell

As the Supreme Court has noted, "inconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense—should not necessarily be interpreted as a windfall to the Government at the defendant's expense" because "[i] t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense …

- in United States v. Hofstetter, 2020

Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. This review should be independent of the jury's determination that evidence on another count was insufficient

- in Fisher v. Latney, 2016