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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doe v. State (07/25/2008) sp-6290

Doe v. State (07/25/2008) sp-6290, 189 P3d 999

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


JOHN DOE, a pseudonym, )
) Supreme Court No. S- 12150
Appellant, )
) Superior Court Nos. 3AN-05-04434 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
) No. 6290 July 25, 2008
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Craig F. Stowers, Judge.

          Appearances:  Darryl L. Thompson,  Darryl  L.
          Thompson,  P.C.,  Anchorage,  for  Appellant.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for Appellee.

          Before:   Fabe, Chief Justice, Matthews,  and
          Eastaugh,  Justices. [Bryner  and  Carpeneti,
          Justices, not participating.]

          EASTAUGH, Justice.
          FABE, Chief Justice, dissenting.

I.   INTRODUCTION
          The  Alaska  statute known as the Alaska  Sex  Offender
Registration  Act  (ASORA)  requires  persons  convicted  of  sex
offenses to register and periodically re-register with the Alaska
Department  of Corrections, the Alaska State Troopers,  or  local
police, and disclose detailed personal information, some of which
is  not  otherwise public.  Most of the disclosed information  is
publicly  disseminated  and is published  by  the  state  on  the
internet.1   Does applying ASORA to John Doe, who  committed  his
crime  and was convicted and sentenced before ASORA was  enacted,
violate the ex post facto clause of the Alaska Constitution?   We
conclude that it does because ASORA imposes burdens that have the
effect of adding punishment beyond what could be imposed when the
crime  was committed.  We therefore hold that ASORAs registration
requirement does not apply to persons who committed their  crimes
before  ASORA  became effective, and reverse the  superior  court
order  granting final judgment in favor of the state and  against
Doe.
II.  FACTS AND PROCEEDINGS
          John Doe was charged in 1985 with three counts of first-
degree  sexual  abuse  of  a  minor  for  molesting  one  of  his
daughters.2   Doe pleaded no contest to one count of first-degree
sexual abuse of a minor, an unclassified felony, and to one count
of  second-degree sexual abuse of a minor, a class B felony.  The
superior  court  accepted his plea and sentenced  him  to  twelve
years of imprisonment with four suspended.  Doe began serving his
sentence in August 1985.
          In  December 1990 Doe completed serving the unsuspended
portion of his sentence less a good-time reduction required by AS
33.20.010(a) and was released to mandatory parole and  supervised
probation.  In September 1991 the Parole Board released Doe  from
mandatory   parole  nearly  two  years  early,   based   on   its
determination   that  Doe  had  participated  in   rehabilitative
counseling and posed little or no threat to the public.  In  1995
Doe completed his period of probation.
          In  May 1994 the Alaska Legislature enacted the statute
known  as the Alaska Sex Offender Registration Act (ASORA).3   It
became  effective  August  10, 1994,4 after  Doe  was  convicted,
sentenced, and released from prison, but before he completed  his
probation.   ASORA  requires sex offenders to register  with  the
Alaska  Department of Corrections, the Alaska State Troopers,  or
local  police.5  It requires registrants to disclose their names,
addresses, places of employment, date of birth, information about
their  conviction,  all  aliases used, drivers  license  numbers,
information  about  the  vehicles  they  have  access   to,   any
identifying  physical features, anticipated address changes,  and
information  about  any  psychological treatment  received.6   It
authorizes  registrants  to be photographed  and  fingerprinted.7
Registrants  must  periodically  re-register  and  update   their
disclosures:  those  convicted  of  aggravated  crimes  must  re-
register quarterly; those not convicted of aggravated crimes must
re-register  annually.8   A sex offender who  changes  residences
must  give notice to the state trooper office or municipal police
department closest to his new residence within one working day.9
          ASORA  requires the Alaska Department of Public  Safety
to maintain a central registry of sex offenders that contains the
information  obtained  under ASORA.10   ASORA  authorizes  public
access  to  offenders names, aliases, dates of birth,  addresses,
photographs,  physical descriptions, motor  vehicle  information,
places   of  employment,  and  public  information  about   their
          convictions and sentences.11  Public access to the information
includes  a statement as to whether the offender is in compliance
with  AS 12.63 or cannot be located.12  The Department of  Public
Safety provides public access to the information by posting it on
the  internet.13  A photograph of each registrant  appears  on  a
webpage   under   the   caption  Registered  Sex   Offender/Child
Kidnapper.14  Each registrants page also displays the registrants
physical  description, home address, employer, work address,  and
conviction information.15
          ASORAs  provisions  require Doe  to  register  and  re-
register every three months for the rest of his life.16  But  his
information  has  never  been publicly  released  on  the  states
website.   In  1994  Doe (using the pseudonym  Rowe)  sued  state
officials in the United States District Court for the District of
Alaska  challenging ASORA on the grounds it violates the  federal
prohibition  against  ex post facto laws,  the  Fourth  Amendment
prohibition against unreasonable searches and seizures, his  plea
bargain contract, and his right to privacy.17  The federal  court
concluded that Doe established a likelihood of success on his  ex
post  facto  and plea agreement violation claims, and found  that
the balance of hardships tipped in favor of Doe to the extent his
registration  information would be publicly  disseminated.18   It
therefore  granted  a  preliminary injunction  requiring  Doe  to
register  under the act, but prohibiting the state from  publicly
disclosing  the registration information.19  In 1998 the  parties
filed  cross-motions for summary judgment and the district  court
granted the states motion.20
          On  appeal, the United States Court of Appeals for  the
Ninth Circuit  reversed the states summary judgment and held that
ASORA  is  an ex post facto law as applied to Doe.21  The  Alaska
Public  Safety  Commissioner petitioned for  certiorari  and  the
United  States Supreme Court reversed the Ninth Circuits decision
after concluding that the statute did not violate the federal  ex
post  facto clause.22  The Court remanded the case to  the  Ninth
Circuit.23   On  remand, the Ninth Circuit  rejected  Does  other
federal  substantive  and procedural due process  claims.24   The
federal courts did not rule on Does state law claims.
          In  January  2005  Doe sued the state in  the  superior
court,  seeking  a judgment declaring that ASORA denies  him  due
process  in  violation  of  the Alaska  Constitution.   Doe  also
requested  a  temporary  restraining order  and  preliminary  and
permanent injunctions to prevent the state from requiring him  to
publicly  register.  The state opposed Does motion for injunctive
relief.   In  August 2005 the superior court denied Does  motion.
It   determined  that  Doe  had  established  the  potential  for
irreparable harm, but had not established a likelihood of success
on  the  merits.  It concluded that Doe had not shown that ASORAs
registration  requirement  violated  any  fundamental  right   or
liberty  interest  and  that requiring Doe to  publicly  register
therefore  would  not violate his substantive or  procedural  due
process rights.
          Anticipating  an  appeal to this  court,  the  superior
court  entered  a  temporary  stay under  Alaska  Civil  Rule  62
prohibiting  the  state  from publishing  or  disseminating  Does
          information.  The parties agreed no further superior court
proceedings were necessary to resolve Does claims and  stipulated
to  entry of final judgment.  In November 2005 the superior court
entered final judgment for the state and against Doe.
          Doe appeals.
III. DISCUSSION
     A.   Standard of Review
          We  give  de novo review to questions of law, including
issues of statutory interpretation.25  In ruling on questions  of
law,  we  adopt  the rule which is most persuasive  in  light  of
precedent,  reason,  and  policy.26   We  apply  our  independent
judgment  in  determining whether a statute violates  the  Alaska
Constitution.27
     B.   The Ex Post Facto Clause
          1.   The parties contentions
          Does  opening brief argues that compliance  with  ASORA
would impose harmful and onerous new consequences, violating  his
right to due process.  Because we determined that the essence  of
his  argument is an ex post facto claim, we asked the parties  to
submit  supplemental briefs addressing whether as applied to  Doe
ASORA violates Alaskas prohibition against ex post facto laws.
          Article I, section 15 of the Alaska Constitution,  like
article  I, section 9 of the United States Constitution, provides
that  [n]o . . . ex post facto law shall be passed.  An  ex  post
facto  law  is  a law passed after the occurrence of  a  fact  or
commission  of  an act, which retrospectively changes  the  legal
consequences  or  relations  of  such  fact  or  deed.28    These
constitutional prohibitions bar the legislature from enacting any
law  that punishes as a crime an act previously committed,  which
was   innocent  when  done;  which  makes  more  burdensome   the
punishment  for a crime, after its commission; or which  deprives
one  charged  with a crime of any defense available according  to
law at the time when the act was committed.29  But [t]he mere fact
that  [a statute] alters a convicted felons circumstances to  his
or  her disadvantage does not in itself invalidate the statute as
ex post facto.30  In short, the prohibition applies only to penal
statutes;  the  critical  question  is  therefore  whether  ASORA
imposes  additional  punishment on  individuals,  like  Doe,  who
committed  their  crimes before ASORA became effective.   Federal
courts use a two-part test to determine whether a statute imposes
punishment.31  This is the test we will describe in Part  III.B.3
and  apply  in  Part III.C.  We will refer to this  test  as  the
intent-effects test or the multifactor effects test.
          Doe  argues  that because it substantially  alters  the
consequences  attached  to the completed crime,  ASORA  satisfies
Alaskas   ex   post  facto  clause  only  if  ASORA  is   applied
prospectively, to persons who committed their crimes after August
10, 1994, when ASORA took effect.32
          Doe  advances  two main arguments in  support.   First,
recognizing that the United States Supreme Court held in Smith v.
Doe that ASORA does not violate the federal ex post facto clause,33
Doe  argues that the Alaska Constitution provides more protection
than  the Federal Constitution.  Doe urges us to read the  Alaska
ex post facto clause in conjunction with the due process clause34
          and article I, section 135 of the Alaska Constitution.  He argues
that  Alaskas due process and ex post facto clauses,  unlike  the
corresponding  federal clauses, are aimed at the legislature  and
that  both  clauses are intended to protect individual  liberties
from  retroactive infringement.  Doe therefore  reasons  that  we
should  interpret Alaskas ex post facto clause more broadly  than
the  corresponding federal clause.  He alternatively argues  that
ASORA  is  an invalid ex post facto law even if Alaskas  ex  post
facto  clause is coextensive with its federal counterpart because
ASORA is punitive under the federal standard.
          The  state  responds  that ASORA is  a  regulatory  law
intended to help protect the public by collecting information and
making  it publicly accessible.  It argues that ASORA  is  not  a
penal  law,  and  that  it was not intended to  punish  convicted
individuals for past acts.  The state also contends that  because
our  past  decisions  discussing the ex post  facto  clause  have
interpreted the Alaska prohibition to be the same as the  federal
prohibition,36 the doctrine of stare decisis obliges us  to  hold
that  the  Alaska  provision  is  coextensive  with  the  federal
provision.   The state consequently concludes that because  ASORA
satisfies  the federal ex post facto clause, ASORA also satisfies
Alaskas ex post facto clause.37
          2.   Stare decisis
          The  state  correctly  notes that  we  have  relied  on
federal precedent and analysis in addressing state ex post  facto
claims in the past.
          We concluded in one case that a decision of the Supreme
Court  addressing  an  ex  post  facto  challenge  to  a  statute
equivalent  to the statute then before us is dispositive  of  any
claim based on the federal constitution, and we see no reason for
us  to  interpret Alaskas constitutional provision differently.38
In  another  case, we saw no reason to construe our  parallel  ex
post  facto prohibition  article I, section 15  differently  from
the federal provision.39  In another, we relied on a Supreme Court
opinion   in   concluding   that  the  challenged   statute   was
compensatory rather than punitive and that it therefore  did  not
violate either the federal or state ex post facto clause.40   And
in  another case, we stated that [w]e construe our state [ex post
facto] prohibition no differently than the federal prohibition.41
          In  short, having seen no reason to do otherwise,42  we
construed Alaskas ex post facto prohibition in those cases to  be
coextensive  with  the  corresponding  federal  prohibition.   We
therefore accepted the federal analyses and results.  We  did  so
notwithstanding our contemporaneous and repeated recognition that
we  have the authority and, when necessary, duty to construe  the
provisions   of  the  Alaska  Constitution  to  provide   greater
protections  than  those  arising out of  the  identical  federal
clauses.43           In following federal authority, our ex  post
facto  cases have implicitly reasoned that it was unnecessary  in
those  cases  either  to  deviate  from  the  federal  analytical
approach or to construe our constitution more protectively.44  We
implicitly  so reasoned because the federal decisions reached  an
outcome   not   inconsistent   with  the   Alaska   Constitution.
Nonetheless,  we  have  never  endorsed  federal  ex  post  facto
          analysis as superseding or limiting our independent consideration
of  Alaskas  ex post facto prohibition.45  Nor have we  indicated
that   federal  interpretation  of  the  federal  ex  post  facto
prohibition  prevents  us from reaching  a  different,  and  more
protective, result under the Alaska Constitution.
          Stare   decisis  therefore  has  no  application  here.
Todays  decision  does not overrule or depend on  overruling  any
prior  decision of this court, nor does it depart from  any  past
holding  of  this  court.  We have never  adopted  a  reading  of
Alaskas  ex  post facto prohibition that would, unless overruled,
foreclose todays result.46
          Nor  is todays decision, or the analysis we apply here,
inconsistent  with the analytical approach we have  approved  for
deciding ex post facto claims under the Alaska Constitution.  Our
reliance  on the multifactor effects test is consistent with  our
past use of federal law in resolving state ex post facto claims.47
And  in applying that test here we also reach a result consistent
with  what the federal standards appear to have been before 2003,
when the Supreme Court decided Smith.48
          That  the  Supreme  Court, after considering  the  same
factors and same statute that we consider today, held in Smith v.
Doe  that there was no ex post facto violation may seem to  raise
several questions.  First, why doesnt Smiths holding control this
case  as  a  matter of stare decisis?  Second, why doesnt  Smiths
discussion  of the multifactor effects test control our  analysis
in  applying the same factors?  Third, even if Smiths  discussion
of  those  factors  is  not  directly  controlling,  how  can  we
rationally disagree with it?
          As  to  the first question, Smiths holding is not stare
decisis  here  because  Does  claims  are  based  on  the  Alaska
Constitution, whereas Smith was based exclusively on the  Federal
Constitution.49  Smith did not apply state law or decide state law
issues.
          As to the second question, how we apply the multifactor
effects test in deciding an ex post facto claim under the  Alaska
Constitution   is  not  governed  by  how  the   federal   courts
independently apply the same test under the Federal Constitution,
as  long as our interpretation is at least as protective  as  the
federal interpretation.50  What we have said in our ex post facto
cases cannot be read as prospectively limiting the protections of
the  Alaska Constitution to what federal courts might  later  say
the  corresponding federal clauses provide.  Nor  could  we  have
done so.51
          Finally,   the  Supreme  Courts  discussion  in   Smith
certainly informs our analysis here.  But it does not and  cannot
preempt our independent analysis or dictate the result we  reach.
Our  interpretation of a clause in the Alaska Constitution is not
limited by the Supreme Courts interpretation of the corresponding
federal clause.52  As the Supreme Court has recognized,
          [i]f a state court chooses merely to rely  on
          federal  precedents  as  it  would   on   the
          precedents  of all other jurisdictions,  then
          it  need only make clear by a plain statement
          in  its  judgment or opinion that the federal
          cases are being used only for the purpose  of
          guidance,  and do not themselves  compel  the
          result that the court has reached.[53]
          
          Consequently,  the results of the federal  opinions  do
not  control  our independent analysis when, in interpreting  the
Alaska  Constitution,  we  look for guidance  to  either  federal
precedent or the analytical framework applied by federal  courts.
Our  adoption of the analytical approach approved by the  federal
courts  likewise  does  not mean that we are  bound  by  how  the
Supreme  Court  applied  that approach in  Smith.   The  question
before  us  is whether applying ASORA to Doe violates Alaskas  ex
post  facto  provision.  As to that question, Alaska retains  its
sovereign authority.
          3.   Our choice of analytical approach
          We  begin  our analysis by identifying the  appropriate
analytical  framework.   In  Smith  v.  Doe,  the  Supreme  Court
considered the identical issue under the Federal Constitution and
applied  the  multifactor intent-effects test  derived  from  the
Courts  prior  decisions.54   Under  this  test,  a  court  first
determines whether the legislature intended to impose punishment;
if  punishment was the intent, the courts inquiry ends.55  But if
the  court concludes that the legislature intended a non-punitive
regulatory  scheme, the court next analyzes the  effects  of  the
statute  under  a  number  of factors to  determine  whether  the
statute is nonetheless punitive in effect.56  Our court has never
adopted this test, but the Alaska Court of Appeals applied it  in
considering and rejecting an ex post facto challenge to ASORA  in
Patterson v. State.57
          The   intent-effects  test  provides   an   appropriate
analytical  framework  here.  Although  a  multifactor  test   is
potentially    susceptible   to   different   conclusions,    the
availability  of  reported  decisions applying  that  test  helps
inform its application in new cases.
          Our  conclusion  that it is appropriate  to  apply  the
federal  test to our state law inquiry in this case is consistent
with  our  independent consideration of each of the  tests  seven
factors,  because we are here both construing the protections  of
our  constitution and reviewing an enactment of our  legislature.
Therefore, even though we choose to consider the same factors the
federal  courts  use  to distinguish between civil  remedies  and
criminal penalties,58 we give independent consideration to  these
factors in applying the Alaska Constitution.
     C.   ASORA  Is Punitive for Purposes of the Alaska  Ex  Post
          Facto Clause.
          The intent-effects test would usually first require  us
to  consider  whether  the Alaska Legislature,  when  it  enacted
ASORA,  intended to enact a regulatory scheme that is  civil  and
non-punitive.59  If the purpose was not punishment but regulation,
the  test would next require us to determine whether the  effects
of  regulation are so punitive that we must nonetheless  conclude
that ASORA imposes punishment.60
          It  is  not necessary to address the first step of  the
test   whether the legislature intended ASORA to punish convicted
          sex offenders  because the second part of the test  whether
ASORAs  effects  are  punitive  resolves the dispute  before  us.
Assuming without deciding that the legislature intended ASORA  to
be  non-punitive,61 we therefore focus on the statutes effects to
determine whether they are punitive.62
          In  assessing  a  statutes effects, the  Supreme  Court
indicated in Ward the seven factors it listed in 1963 in  Kennedy
v. Mendoza-Martinez provide some guidance:63
          (1)   [w]hether  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
          traditional  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
          for it; and
          
          (7)  whether it appears excessive in relation
          to the alternative purpose assigned.[64]
          
          The Supreme Court has not explained the relative weight
to  be  afforded each factor.  But the Court has recognized  that
the  factors often point in differing directions and that no  one
factor  is  determinative.65  Determining whether  a  statute  is
punitive   necessarily  involves  the  weighing   of   relatively
subjective factors.
          We address each of the factors in turn.
          1.   Affirmative disability or restraint
          We   first  ask  [w]hether  the  sanction  involves  an
affirmative  disability or restraint.66  The  state  argues  that
ASORA  involves neither because it imposes no physical restraint,
has obligations less harsh than occupational debarment  which the
Supreme  Court has held to be non-punitive67  and, in the Supreme
Courts  words, restrains [no] activities sex offenders may pursue
but leaves them free to change jobs or residences.68
          But   even  though  the  statute  imposes  no  physical
restraints, we agree with Justice Stevenss dissenting comments in
Smith  that  ASORA impose[s] significant affirmative  obligations
and  a  severe  stigma on every person to whom [it]  appl[ies].69
First,   ASORA   compels   affirmative   post-discharge   conduct
(mandating  registration, re-registration, disclosure  of  public
and  private information, and updating of that information) under
threat   of  prosecution.70   The  duties  are  significant   and
intrusive,   because  they  compel  offenders  to   contact   law
enforcement agencies and disclose information, some of  which  is
          otherwise private, most of it for public dissemination.71
Furthermore,   the  time  periods  associated  with   ASORA   are
intrusive.72  Sex offenders convicted of an aggravated sex offense73
or  two  or more sex offenses must re-register quarterly for  the
rest  of  their  lives;  all  other  offenders  must  re-register
annually  for  fifteen  years.74  All sex  offenders  who  change
residences  must  notify the state trooper  office  or  municipal
police  department  closest to their new  residences  within  one
working day.75  As we stated in Doe v. State, Department of Public
Safety (Doe  A), ASORA thus treats offenders not much differently
than  the  state  treats  probationers and  parolees  subject  to
continued state supervision.76
          Second,   we  agree  with  the  conclusion  of  Justice
Ginsburg,   also   dissenting  in  Smith,  that   ASORA   exposes
registrants,  through  aggressive public  notification  of  their
crimes,  to  profound humiliation and community-wide ostracism.77
In  the  decision  reversed in Smith, the Ninth Circuit  observed
that  [b]y  posting [registrants] names, addresses, and  employer
addresses  on  the  internet, the Act subjects  [registrants]  to
community  obloquy  and  scorn that damage  them  personally  and
professionally.78  The Ninth Circuit observed that the  practical
effect  of  this  dissemination  is  that  it  leaves  open   the
possibility  that  the registrant will be denied  employment  and
housing  opportunities as a result of community hostility.79   As
Justice Souter noted in concurring in Smith, there is significant
evidence  of onerous practical effects of being listed on  a  sex
offender registry.80  Outside Alaska, there have been reports  of
incidents  of  suicide  by and vigilantism against  offenders  on
state registries.81
          We  also disagree with the Supreme Courts conclusion in
Smith that the obligations ASORA imposes are less harsh than  the
occupational  debarment  which the Court  has  held  to  be  non-
punitive.82  The Supreme Court has upheld the constitutionality of
post-conduct professional sanctions that included the prohibition
of further participation in the banking industry83 and revocation
of  medical  licenses.84  A comparable bar for sex offenders  who
pose  a risk to children might be employment in places frequented
by  children.   But  the practical effects here  can  predictably
extend  to  all employment opportunities as well as to all  other
non-employment  aspects of life, including housing opportunities.
There   are   published  reports  that  offenders  are  sometimes
subjected  to protests and group actions designed to  force  them
out  of  their  jobs and homes.85  We agree that [t]he  practical
effect   of  such  unrestricted  dissemination  could   make   it
impossible for the offender to find housing or employment.86
          The  state  argues, however, that the negative  effects
that  Doe emphasizes (negative impacts on employment and  housing
opportunities)  will exist even if Doe is not  subject  to  ASORA
because  those  consequences result  not  from  registration  and
dissemination  of  information, but from the  conviction  itself.
Moreover,  the  state  asserts that there  is  no  evidence  that
Alaskans  have directed any wrath at convicted sex offenders  and
notes  that the sex offender registry website warns viewers about
using registry information to commit a criminal act.87
          Neither  of  these  arguments  is  persuasive.    ASORA
requires  release  of information that is in part  not  otherwise
public or readily available.  Moreover, the regulations authorize
dissemination  of  most ASORA registration  information  for  any
purpose,  to any person.88  Taken in conjunction with the  Alaska
Public  Records  Act,89  ASORAs treatment  of  this  information,
confirmed  by  the  regulations,  seems  to  require   that   the
information  be  publicly  available.   By  federal  law,  it  is
disseminated statewide, indeed worldwide, on the states website.90
There is a significant distinction between retaining public paper
records  of  a conviction in state file drawers and  posting  the
same  information on a state-sponsored website; this posting  has
not  merely  improved public access but has broadly  disseminated
the  registrants information, some of which is not in the written
public  record of the conviction.  As the Alaska Court of Appeals
noted,  ASORA  does  provide  for  dissemination  of  substantial
personal  and biographical information about a sex offender  that
is  not  otherwise  readily available from a single  governmental
source.91  We also recognized in Doe A that several sex offenders
had  stated  that they had lost their jobs, been forced  to  move
from their residences, and received threats of violence following
establishment  of the registry, even though the  facts  of  their
convictions  had  always been a matter of  public  record.92   We
therefore  conclude that the harmful effects of  ASORA  stem  not
just  from  the conviction but from the registration, disclosure,
and dissemination provisions.
          We  are  also unpersuaded by the states assertion  that
there  is insufficient evidence to establish that harmful effects
have  actually  occurred  in  Alaska.   Does  affidavit  contains
excerpts  from  affidavits submitted in the federal  court.   The
excerpts  recite  instances  of  registrants  losing  employment,
having difficulty finding housing and employment, and moving  out
of   the   marital  home  due  to  fear  of  the  effects  public
dissemination would have on their families.  Similarly, the Ninth
Circuit, when addressing Does earlier ex post facto challenge  to
ASORA, noted that the record before that court contained evidence
that  a  sex offender suffered community hostility and damage  to
his   business  after  printouts  of  the  Alaska  sex   offender
registration  website  were publicly distributed  and  posted  on
bulletin boards.93
          2.   Sanctions  that have historically been  considered
               punishment
          We  next determine whether [the statutes effects  have]
historically  been regarded as a punishment.94   ASORA  does  not
expressly impose sanctions that have been historically considered
punishment.95   Because registration acts such as  ASORA  are  of
fairly   recent  origin,  courts  addressing  this   issue   have
determined  that  there  is  no historical  equivalent  to  these
registration acts.96  Some courts have instead considered whether
the  acts  are analogous to the historical punishment of shaming;
these  courts  have  concluded that  they  are  not.97   But  the
dissemination  provision  at least resembles  the  punishment  of
shaming98  and  the  registration and disclosure  provisions  are
comparable to conditions of supervised release or parole.99   And
          these provisions have effects like those resulting from
punishment.    The   fact  that  ASORAs  registration   reporting
provisions  are  comparable  to  supervised  release  or   parole
supports a conclusion that ASORA is punitive.
          3.   Finding of scienter
          Third,  we  consider whether [the statute]  comes  into
play  only on a finding of scienter.100  The obligations of ASORA
are not imposed solely upon the finding of scienter.101  ASORA also
applies  to  strict liability offenses, such as  statutory  rape,
that  the  law  deems sufficiently harmful to effectively  assume
scienter.102   But  even though ASORA applies  to  a  few  strict
liability  offenses, it overwhelmingly applies to  offenses  that
require  a  finding  of  scienter  for  conviction.103   The  few
exceptions  do  not  imply  a  non-punitive  effect,  given   the
assumption of scienter for those exceptions and the fact  that  a
reasonable-mistake-of-age  defense is  allowed  in  a  charge  of
statutory rape.104  This factor therefore receives little weight in
our analysis; it weakly implies a punitive effect.
     
     4.   The traditional aims of punishment
          We  next  ask  whether  [the statutes]  operation  will
promote  the  traditional  aims of  punishment   retribution  and
deterrence.105   Although in State v. Chaney we  identified  four
objectives  of  criminal  sentencing  rehabilitation,  isolation,
deterrence of defendant and others, and reinforcement of societal
norms106   the  Mendoza-Martinez test focuses on retribution  and
deterrence.107   The  state  argues  that  the  registration  and
dissemination  provisions  are  not  retributive  and  that   any
deterrent  effects  of  registration and dissemination  are  only
incidental to the provisions regulatory function.
          But  ASORAs application to a broad spectrum  of  crimes
regardless of their inherent or comparative seriousness108 refutes
the  states  argument  and  suggests that  such  retributive  and
deterrent  effects  are  not merely incidental  to  the  statutes
regulatory purpose.  Every person convicted of a sex offense must
provide  the  same  information, and  the  state  publishes  that
information in the same manner, whether the person was  convicted
of  a class A misdemeanor or an unclassified felony.  ASORAs only
differentiation  is in the frequency and duration  of  a  persons
duty  to  register and disclose.109  But at any given moment  the
registration  list  does not distinguish  those  individuals  the
state  considers  to pose a high risk to society  from  those  it
views  as  posing a low risk.  ASORA determines who must register
based  not  on  a particularized determination of  the  risk  the
person  poses to society but rather on the criminal  statute  the
person was convicted of violating.
          In  Kansas  v.  Hendricks the Supreme Court  determined
that  the Kansas Sexually Violent Predator Act is not retributive
because it does not affix culpability for prior criminal conduct.110
That act is not triggered by a criminal conviction, but rather by
criminal conduct; it applies to individuals charged with sexually
violent   offenses   but   who  may  be  absolved   of   criminal
responsibility.111   The  Supreme Court there  stated  that  [a]n
absence  of  the necessary criminal responsibility suggests  that
          the State is not seeking retribution for a past misdeed.112  But as
we discuss in Part III.C.5, ASORA applies only to those convicted
of specified offenses.113
          Moreover, in Doe v. Smith the Supreme Court noted  that
the state had conceded that ASORA might deter future crimes,114 an
effect  that would be punitive.  Although the state has  made  no
similar  concession  in this appeal, it is significant  that  the
state  there  admitted that the same statute on  the  same  facts
currently  before  us could have deterrent  effects.   The  state
argues  here that, in the Supreme Courts words, it would severely
undermine   the  Governments  ability  to  engage  in   effective
regulation115 to determine that a law is punitive because it also
deters.  We assume for sake of discussion that a statute limiting
registration requirements and public dissemination to the  extent
necessary  to  protect the public could have a  deterrent  effect
that would be merely incidental to its non-punitive purpose.  But
ASORAs    registration   and   unlimited   public   dissemination
requirements provide a deterrent and retributive effect that goes
beyond  any non-punitive purpose and that essentially serves  the
traditional goals of punishment.
          5.   Application only to criminal behavior
          Under the fifth factor we consider whether the behavior
to  which [the statute] applies is already a crime.116  The  fact
that  a  statute  applies only to behavior that is  already,  and
exclusively, criminal supports a conclusion that its effects  are
punitive.117  When analyzing ASORA the Supreme Court asserted  in
Smith that this factor was of little weight in this case.118  The
Court  there  stated  that conviction is  a  necessary  beginning
point,  for  recidivism  is  the statutory  concern.119   But  if
recidivism,  i.e., new sexual misconduct, were the only  concern,
the  statute would apply not just to convicted sex offenders  but
to  other  individuals who may pose a threat to society  even  if
they  were  not  convicted.   See, for  example,  the  Washington
registration  act, upheld by the Ninth Circuit; it  includes  sex
offenders not found guilty  including those incompetent to  stand
trial,  those found not guilty by reason of insanity,  and  those
committed as sexual psychopaths or sexually violent predators  as
well  as those who are convicted.120  The Utah registration  act,
also constitutionally upheld, includes those found not guilty  on
the ground of mental incapacity.121
          As  the  state  concedes, ASORA applies only  to  those
convicted of specified offenses.122  Defendants charged with  sex
offenses  but who plead out to non-sex offenses such as  coercion
or  simple assault do not have to register even though  they  may
have  engaged in the same conduct as individuals who do  have  to
register.123  Likewise, even convicted defendants whose convictions
are  overturned for reasons other than insufficiency of  evidence
of  guilt do not have to register despite having engaged  in  the
same conduct.124  An adult who commits sexual abuse of a minor in
the  first degree by engaging in sexual penetration with a person
under thirteen years of age,125 but whose conviction is overturned
due  to  an illegal search, does not have to register.   Finally,
ASORA  does not require registration for those charged  with  sex
offenses but acquitted, even though they may have engaged in  the
          same conduct as convicted sex offenders and might even be found
civilly liable under a lesser standard of proof.
          It is true that ASORA applies to individuals who either
enter a plea of or are found guilty but mentally ill.126  But we do
not  read this inclusion to make the scope of ASORA the  same  as
that  of  the  Washington and Utah registration  acts  previously
discussed.  Because including this class of offenders again looks
to  guilt, applying ASORA to those found guilty but mentally  ill
does not demonstrate any non-punitive effect.
          In  other  words,  ASORA fundamentally  and  invariably
requires  a  judgment of guilt based on either a  plea  or  proof
under  the  criminal standard.  It is therefore the determination
of  guilt  of a sex offense beyond a reasonable doubt (or  per  a
knowing  plea), not merely the fact of the conduct and  potential
for  recidivism,  that  triggers  the  registration  requirement.
Because  it  is  the criminal conviction, and only  the  criminal
conviction,  that triggers obligations under ASORA,  we  conclude
that  this factor supports the conclusion that ASORA is  punitive
in effect.127




          6.   Advancing a non-punitive interest
          We next ask whether, in the words of the Supreme Court,
an  alternative purpose to which [the statute] may rationally  be
connected is assignable for it.128  We translate this as an inquiry
whether  ASORA advances a legitimate, regulatory purpose.   ASORA
can  rationally be viewed as advancing a non-punitive purpose.129
When it enacted ASORA the legislature found that:
          (1)                 sex
                              offen
                              ders
                              pose
                              a
                              high
                              risk
                              of
                              reoff
                              endin
                              g
                              after
                              relea
                              se
                              from
                              custo
                              dy;
                              
          (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  governments  interest  in  public
          safety; and
          
               
               
          (4)  the release of certain information about
          sex  offenders  to  public agencies  and  the
          general public will assist in protecting  the
          public safety.[130]
          
          The  Ninth  Circuit stated that the states non-punitive
interest   in  public  safety  unquestionably  provides  support,
indeed,  the principal support, for the view that the statute  is
not  punitive for Ex Post Facto Clause purposes.131  The  Supreme
Court  also  stated  that ASORAs rational connection  to  a  non-
punitive  purpose  was  a  [m]ost  significant  factor   in   its
determination that ASORA is non-punitive in effect.132  We likewise
conclude that ASORA advances a non-punitive interest.
          7.   Closeness  of  connection of means to  the  states
               interest in public safety
               
          Finally, we determine whether [ASORA] appears excessive
in relation to the alternative purpose assigned.133  In analyzing
this  factor the Ninth Circuit addressed the scope of individuals
subject  to ASORA and the breadth of its dissemination provision;
it  determined  that  ASORA  makes  information  as  to  all  sex
offenders . . . available without any restriction and without any
regard  to whether the individual poses any future risk.134   The
Ninth  Circuit  consequently concluded that  ASORAs  non-punitive
purpose,  while  of unquestioned importance, does  not  serve  to
render a statute that is so broad and sweeping non-punitive.135
          The   Supreme  Court  also  addressed  the  scope   and
magnitude   of   ASORAs   registration   requirements   and   its
dissemination  provision,  but  concluded  that  ASORA   is   not
excessive in relation to the states interest in public safety.136
In so deciding it determined 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,137  and that  the  duration  of  ASORAs
reporting  requirements and what the Court called ASORAs  passive
notification  system are not so excessive as  to  be  effectively
penal.138
          The  Court stated that the excessiveness inquiry is not
an  exercise in determining whether the legislature has made  the
best  choice possible to address the problem it seeks to  remedy.
The   question  is  whether  the  regulatory  means  chosen   are
reasonable in light of the nonpunitive objective.139
          As   the   legislature  found  when   enacting   ASORA,
protecting   the  public  from  sex  offenders   is   a   primary
governmental interest.140  The state certainly has a valid interest
in addressing not just the egregious and highly publicized crimes
that gave rise to the Megans Law movement,141 but also other crimes
of  which  the  risk of repetition and grave harm is sufficiently
predictable to justify the protections afforded by ASORA.  But in
the  context of our ex post facto inquiry, we have an  obligation
to  determine  whether the means chosen to carry  out  legitimate
          purposes are excessive, i.e., not close enough to be classified
as non-penal.
          We  use  means here to include the scope of the statute
and  the  obligations it imposes on those subject to it and  what
the state can or must do in enforcing it.
          It  is  significant  that ASORAs  scope  is  broad;  it
encompasses a wide array of crimes that vary greatly in severity.142
Moreover,  ASORA provides no mechanism by which a registered  sex
offender  can petition the state or a court for relief  from  the
obligations of continued registration and disclosure.143  Offenders
cannot shorten their registration or notification period, even on
the  clearest determination of rehabilitation or conclusive proof
of  physical  incapacitation.144  Doe  successfully  completed  a
treatment  program and was granted early release  from  mandatory
parole.  A superior court granted him legal custody of his  minor
daughter  based  on  its determination that he  was  successfully
rehabilitated  and  posed  a very low  risk  of  re-offending.145
Despite  this evidence of rehabilitation, ASORA requires  Doe  to
register quarterly and requires the state to publicly disseminate
his personal information for the rest of his life.146
          Under  ex post facto analysis we further conclude  that
the  statutes  chosen  means are excessive  in  relation  to  the
statutes purpose because the statute is also underinclusive.   As
we  discussed  in  Part  III.C.5, ASORA  only  applies  to  those
convicted of specified offenses.147  It therefore excludes from its
requirements individuals who may have committed the same acts and
may  pose  threats  to the public but who avoided  conviction  by
pleading to a lesser charge or whose convictions were overturned.
We  do not mean to suggest that making the statute more inclusive
would  necessarily  resolve ex post facto  issues  or  that  such
changes would otherwise be constitutionally unobjectionable,  but
we  point to this feature to illustrate that ASORA has a punitive
effect.
          ASORA  also imposes obligations that, for ex post facto
purposes,  are  excessive in relation to  the  states  legitimate
public  safety interest.  It is significant that the registration
and re-registration requirements are demanding and intrusive148 and
are of long duration.149
          Finally,  the  provisions authorizing or requiring  the
state to disseminate the information are sweeping.  ASORA is much
broader  than the Connecticut statute that authorizes  courts  to
order the state to restrict dissemination if the court finds that
dissemination  is  not  required  for  public  safety  and   that
publication  of the information would likely reveal the  identity
of  the  victim.150  ASORA is much closer to the  Kansas  statute
struck down on ex post facto grounds by the Kansas Supreme  Court
because  of  its  unrestricted public access . .  .  [that]  goes
beyond that necessary to promote public safety.151
          We  are  not  balancing  the rights  of  sex  offenders
against the rights of their victims.152  Rather, we are determining
for  ex  post facto purposes whether the means chosen to  protect
the  public have consequences to sex offenders that significantly
go beyond the states valid interest in public safety, and exclude
individuals  who  may pose equivalent threats to  public  safety.
          Some sex offender registration statutes employ means that have
been  held to relate rationally and closely enough to the  states
interest  in  public  safety.  For example,  the  Second  Circuit
concluded that the notification policy adopted by the Connecticut
Office  of Adult Probation was not excessive in relation  to  its
purpose of enhancing public awareness and helping to prevent  the
recovering offender from harmful relapses.153  Connecticut allows
certain sex offenders convicted between October 1, 1988 and  June
30,  1999 to petition the court to order the Department of Public
Safety   to   restrict  the  dissemination  of  the  registration
information to law enforcement purposes only and to not make such
information  available  for public access.154   Connecticut  also
provides  certain  sex  offenders  the  possibility  of  avoiding
registration and dissemination upon a judicial determination that
registration or public dissemination is not required  for  public
safety.155
          A  statute  is  not deemed punitive simply  because  it
lacks  a close or perfect fit with the nonpunitive aims it  seeks
to  advance.156   Although the non-punitive aims  are  undeniably
legitimate  and important, ASORAs registration and  dissemination
provisions have consequences to sex offenders that go beyond  the
states interest in public safety; we must therefore conclude that
the  Alaska  statute  is  excessive in  relation  to  the  states
interest in public safety.
          8.   ASORAs effect
          Summing  up  the  effects under the seven  factors,  we
conclude  that  ASORAs  effects are  punitive,  and  convincingly
outweigh  the  statutes non-punitive purposes  and  effects.   We
recognize  that several of the factors seem closely related,  and
that  discussion  of  one  may  overlap  discussion  of  another.
Nonetheless it is not the mere number of factors that leads us to
our  conclusion,  but our assessment of those factors  and  their
relative  weight.   Six  of those factors lead  us  to  disagree,
respectfully but firmly, with the Supreme Courts analysis and its
ultimate conclusion that ASORA is not penal.157  Our decision  is
consistent with what we consider to be the compelling comments of
dissenting justices in Smith158 and with the majority of the Ninth
Circuit  Court of Appeals panel that, before reversal,  discerned
an ex post facto violation under federal law.159
          Because  ASORA  compels  (under threat  of  conviction)
intrusive affirmative conduct, because this conduct is equivalent
to  that required by criminal judgments, because ASORA makes  the
disclosed information public and requires its broad dissemination
without limitation, because ASORA applies only to those convicted
of  crime,  and  because ASORA neither meaningfully distinguishes
between  classes of sex offenses on the basis of risk  nor  gives
offenders  any  opportunity to demonstrate their  lack  of  risk,
ASORAs  effects  are punitive.  We therefore  conclude  that  the
statute violates Alaskas ex post facto clause.160
IV.  CONCLUSION
          Because    ASORAs    registration,   disclosure,    and
dissemination provisions violate the protection against  ex  post
facto  laws afforded by the Alaska Constitution as it applies  to
defendants  who  committed their crimes  before  the  legislature
          enacted ASORA, we hold that AS 12.63.100(3) cannot be applied to
Doe.   We consequently REVERSE the final judgment for the  state,
and REMAND for entry of judgment for Doe.
FABE, Chief Justice, dissenting.
          I  disagree  with  the  courts  conclusion  that  ASORA
violates  the  ex  post facto clause of the Alaska  Constitution.
The  court maintains that its reliance on the multifactor effects
test  is consistent with our past use of federal law in resolving
state  ex post facto claims.  But our past decisions have  firmly
established a practice of interpreting the Alaska ex  post  facto
clause  no differently than its federal counterpart.1  The  court
now  purportedly applies that federal test to the facts  of  this
case:    [t]he   intent-effects  test  provides  an   appropriate
analytical  framework  here.  But the  courts  decision  directly
conflicts  with  the United States Supreme Courts application  of
the  same test to the same statute.2  As we have concluded in the
past,  this  case presents no reason for us to interpret  Alaskas
constitutional provision differently.3
          The    court   defends   its   expansion   of   Alaskas
constitutional  protections against ex post facto  litigation  as
consistent  with what the federal standards appear to  have  been
before 2003, when the Supreme Court decided Smith.  But the Smith
Court announced no intention to depart from the standards that it
had   previously   created  or  to  alter  the   Mendoza-Martinez
multifactor  effects  test.  The Smith Court  reasoned  that  its
examination  of [ASORAs] effects leads to the determination  that
[Doe]  cannot  show, much less by the clearest  proof,  that  the
effects of the law negate Alaskas intention to establish a  civil
regulatory  scheme.4   Despite this courts implication  that  the
United States Supreme Court misapplied the Federal Ex Post  Facto
Clause,  todays  decision actually broadens  the  protections  of
Alaskas   ex  post  facto  clause  beyond  that  of  the  Federal
Constitution.   Thus, the court must justify its  departure  from
our  established practice of interpreting the Alaska and  federal
ex  post facto clauses as coextensive.  Todays decision, however,
fails to do so.
          Of  course,  we have the authority and, when necessary,
duty  to  construe the provisions of the Alaska  Constitution  to
provide  greater  protections  than  those  arising  out  of  the
identical federal clauses.  For example, we have devised our  own
sliding-scale  test  to implement Alaskas  more  stringent  equal
protection standard,5 which we have held protects Alaskans  right
to  non-discriminatory  treatment more  robustly  than  does  the
federal  equal protection clause.6  We have held that  the  state
constitution entitles Alaskans to a jury trial where the  Federal
Constitution  does  not.7   And we have  interpreted  the  Alaska
Constitutions mandate that [n]o person shall be put  in  jeopardy
twice  for  the  same  offense8  to  extend  beyond  the  Federal
Constitutions  double jeopardy protections.9  But where  we  have
expanded  Alaskans  constitutional protections  beyond  federally
required  minimums, we have recognized a duty to move forward  in
those areas of constitutional progress which we view as necessary
to the development of a civilized way of life in Alaska.10
          We  have never recognized broader protections under the
Alaska  Constitutions ex post facto clause  as  compared  to  the
Federal  Constitutions.11  In Danks v. State, we examined  an  ex
post  facto  challenge to a habitual offender statute.12   As  in
          this case, the United States Supreme Court had rejected a
challenge  to  a  similar  statute under  the  federal  clause.13
Accordingly, we held that the Supreme Court decision disposed  of
Dankss  federal claim, and we saw no reason for us  to  interpret
Alaskas  constitutional  provision differently.14   In  State  v.
Anthony,  we rejected challenges under the state and  federal  ex
post  facto  clauses  to a law that deprived  certain  felons  of
receiving the annual permanent fund dividend.15  Our analysis did
not  differentiate between the two clauses and noted the  parties
agreement  that  the  ex  post facto prohibition  of  the  Alaska
Constitution   is  the  same  as  that  of  the   United   States
Constitution.16
          As  in  this case, State v. Creekpaum17 involved a  sex
offender.   Creekpaum was charged with sexual assault  over  five
years  after  the alleged assault took place.  At the  time  that
Creekpaum   allegedly   committed  his   offense,   a   five-year
limitations  period  applied.  But the  legislature  subsequently
extended that period.  In rejecting Creekpaums challenge  to  the
new  limitations period under the state and federal ex post facto
clauses,  we  relied almost exclusively on United States  Supreme
Court  precedents  in similar cases and once  again  declined  to
construe  our  parallel  ex post facto  prohibition   article  I,
section 15  differently from the federal provision.18
          Finally, in State v. Coon, we rejected a claim that our
adoption of new evidentiary rules for the admission of scientific
evidence  violated federal and state constitutional  prohibitions
on  ex  post facto legislation.19  Our decision in Coon  followed
from  an  analysis of federal precedent and our explanation  that
[w]e  construe  our  state prohibition no  differently  than  the
federal prohibition.20
          These  decisions  leave no doubt that our  practice  of
treating   the   state   and  federal  ex  post   facto   clauses
coextensively  is settled precedent.  The courts decision  today,
recognizing  broader  protections under the Alaska  Constitution,
casts  a  pall  of uncertainty upon our earlier  decisions.   The
court  nevertheless declares that its decision does not  overrule
or  depend  on overruling any prior decision of this  court,  nor
does  it  depart  from  any past holding  of  this  court.   This
assertion ignores the plain language of our previous holdings and
alters the doctrine of stare decisis beyond recognition.
          We   have  explained  that  a  prior  decision  may  be
abandoned because of changed conditions if related principles  of
law  have so far developed as to have left the old rule  no  more
than  a  remnant  of  abandoned  doctrine,  [or]  facts  have  so
changed[,]  or come to be seen so differently, as to have  robbed
the  old  rule of significant application.21  Perhaps  one  could
view  the ongoing development of federal case law, and the United
States  Supreme Courts Smith decision in particular, as a changed
condition.  But the court makes no attempt to frame its  decision
in  such  a  manner.  Instead, the court fails to recognize  that
todays  decision  is  indeed  inconsistent  with  the  analytical
approach we have approved for deciding ex post facto claims under
the Alaska Constitution.
          Because  the court has decided to overrule our  settled
          practice of construing the Alaska Constitutions ex post facto
clause  no  differently than the federal prohibition,22  it  must
meet  the  higher  threshold raised by  the  principle  of  stare
decisis.  In my opinion, that threshold has not been met.   Stare
decisis  demands that we adhere to past precedent unless  we  are
clearly  convinced  the rule was originally erroneous  or  is  no
longer  sound because of changed conditions, and that  more  good
than  harm  would  result  from  a  departure  from  precedent.23
Assuming  arguendo  that  the Supreme Courts  decision  in  Smith
upsets   our   reliance   on  Federal  Ex   Post   Facto   Clause
jurisprudence,  I  remain  unconvinced that  departing  from  our
precedents  to  invalidate ASORA would result in more  good  than
harm.   Alaska is not alone in passing legislation that  responds
to  this  public  safety threat.24  In 1994 Congress  passed  the
Jacob  Wetterling  Crimes Against Children and  Sexually  Violent
Offender Registration Act,25 which conditions federal funding  to
assist  law enforcement on established guidelines for  state  sex
offender    registration   programs.    Alaskas   sex    offender
registration  program  forms  one  small  part  of  a  nationwide
comprehensive regulatory program.
          Nothing  in the courts analysis gives reason to  depart
from  our  established practice of interpreting Alaskas  ex  post
facto  clause  to  mirror the protections of  the  United  States
Constitution.   Our adherence to this practice has not  proceeded
automatically, and it has reflected our regard for the  judgments
of the United States Supreme Court in this area.  Accordingly,  I
respectfully dissent.
_______________________________
     1     Although  ASORA imposes registration, re-registration,
and  disclosure obligations and provides for public dissemination
of  public and private information, we sometimes refer  to  these
provisions collectively as requiring registration, unless context
requires greater specificity.

     2    John Doe is a pseudonym.

     3    Chapter 41 of the 1994 session laws contains provisions
codified in Title 11, chapter 56; Title 12, chapters 55  and  63;
Title  18, chapter 65; Title 28, chapter 5; and Title 33, chapter
30.   Following amendment in 1999, ASORA defines sex offender  as
follows:   sex  offender  or  child  kidnapper  means  a   person
convicted of a sex offense or child kidnapping in this  state  or
another   jurisdiction  regardless  of  whether  the   conviction
occurred before, after, or on January 1, 1999.  Ch. 54,  18,  SLA
1999; AS 12.63.100(5).

          ASORA defines sex offense as follows:

          (6)  sex offense means
               (A)   a  crime under AS 11.41.100(a)(3),
          or  a similar law of another jurisdiction, in
          which  the  person committed or attempted  to
          commit a sexual offense, or a similar offense
          under the laws of the other jurisdiction;  in
          this  subparagraph, sexual  offense  has  the
          meaning given in AS 11.41.100(a)(3);
               (B)   a  crime under AS 11.41.110(a)(3),
          or  a similar law of another jurisdiction, in
          which  the  person committed or attempted  to
          commit  one  of the following  crimes,  or  a
          similar law of another jurisdiction:
               (i)  sexual assault in the first degree;
               (ii)   sexual  assault  in  the   second
          degree;
               (iii)     sexual abuse of a minor in the
          first degree; or
               (iv)  sexual  abuse of a  minor  in  the
          second degree;
               (C)     a    crime,   or   an   attempt,
          solicitation,  or  conspiracy  to  commit   a
          crime,  under  the following  statutes  or  a
          similar law of another jurisdiction:
               (i)  AS 11.41.41011.41.438;
               (ii) AS 11.41.440(a)(2);
               (iii)     AS 11.41.45011.41.458;
               (iv)   AS   11.41.460  if  the  indecent
          exposure is before a person under 16 years of
          age   and   the  offender  has   a   previous
          conviction for that offense;
               (v)  AS 11.61.12511.61.127;
               (vi) AS 11.66.110 or 11.66.130(a)(2)  if
          the  person  who  was induced  or  caused  to
          engage in prostitution was 16 or 17 years  of
          age at the time of the offense; or
               (vii)      former  AS 11.15.120,  former
          11.15.134,  or  assault with  the  intent  to
          commit rape under former AS 11.15.160, former
          AS 11.40.110, or former 11.40.200 . . . .
          
AS 12.63.100(6).

     4    Ch. 41, SLA 1994.

     5    AS 12.63.010(b).

     6     AS 12.63.010(b)(1).  After we heard oral argument  the
legislature enacted Senate Bill 185, amending various sections of
ASORA,  effective January 1, 2009.  Ch. 42, SLA 2008.   Beginning
January 1, 2009, all registrants, regardless of conviction  date,
must  also  disclose  their e-mail addresses,  instant  messaging
addresses, and other internet communication identifiers.  Ch. 42,
3, 6, SLA 2008.

     7    AS 12.63.010(b)(2).

     8    AS 12.63.010(d), .020(a)(1), (2).

     9      AS  12.63.010(c).   Effective  January  1,  2009,   a
registrant must also notify the department within one working day
of  establishing or changing an e-mail address, instant messaging
address, or internet communication identifier.  Ch. 42,   4,  SLA
2008.

     10    See AS 18.65.087(a).

     11     See  AS  18.65.087(b).  The implementing  regulations
state in pertinent part:

          The  department  will provide information  in
          the  central  registry  that  is  subject  to
          public disclosure under AS 18.65.087 for  any
          purpose,  to any person, without  charge,  by
          posting or otherwise making it available  for
          public viewing in printed or electronic form.
          
13 Alaska Administrative Code (AAC) 09.050(a) (2004).

     12    AS 18.65.087(b).

     13    AS 18.65.087(h) provides in pertinent part:

          The Department of Public Safety shall provide
          on  the  Internet website that the department
          maintains  for  the central registry  of  sex
          offenders and child kidnappers information as
          to  how  members  of  the  public  using  the
          website may access or compile the information
          relating to sex offenders or child kidnappers
          for a particular geographic area on a map.
          
See   Alaska   Department   of  Public   Safety,   Sex   Offender
Registration/Child       Kidnapper       Central        Registry,
http://www.dps.state.ak.us/sorweb/sorweb.aspx (last visited  July
21, 2008).  Effective January 1, 2009, the department may provide
a  method  for,  or  may  participate in a federal  program  that
allows,  the public to submit an electronic or messaging  address
or  Internet identifier and receive a confirmation of whether the
address  or  identifier has been registered by a  registered  sex
offender or child kidnapper.  Ch. 42,  5, SLA 2008.

     14     See  Alaska Department of Public Safety, Sex Offender
Registration/Child       Kidnapper       Central        Registry,
http://www.dps.state.ak.us/sorweb/sorweb.aspx  (follow  view  all
entries hyperlink) (last visited July 21, 2008).

     15    See id.

     16    AS 12.63.010(d)(2).

     17    See Rowe v. Burton, 884 F. Supp. 1372, 1375 (D. Alaska
1994).   This procedural history is described in Doe I  v.  Otte,
259  F.3d 979, 983 (9th Cir. 2001), revd sub nom. Smith  v.  Doe,
538 U.S. 84 (2003).

     18    Rowe, 884 F. Supp. at 1380, 1384.

     19    Id. at 1388.

     20    Otte, 259 F.3d at 983, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).

     21    Id. at 995.

     22    Smith v. Doe, 538 U.S. 84, 105-06 (2003).

     23    Id. at 106.

     24    Doe v. Tandeske, 361 F.3d 594, 596-97 (9th Cir. 2004),
cert. denied, 543 U.S. 817 (2004).

     25    Doe v. State, Dept of Pub. Safety (Doe A), 92 P.3d 398,
402  (Alaska 2004) (holding that ASORAs registration requirements
violated  due  process  rights  of  set-aside  recipients   whose
suspended  impositions of sentences were entered under provisions
that require substantial showing of rehabilitation).

     26     State  v.  Murtagh, 169 P.3d 602, 606  (Alaska  2007)
(holding   certain  provisions  of  Alaska  Victims  Rights   Act
unconstitutional  because they interfered with  criminal  defense
investigations without adequate justification).

     27    Doe A, 92 P.3d at 402.

     28     In  re Estate of Blodgett, 147 P.3d 702, 711  (Alaska
2006)  (quoting  Danks v. State, 619 P.2d 720,  722  n.3  (Alaska
1980)); see also Kahn v. Inspector Gen. of U.S. Dept of Health  &
Human  Servs.,  848  F. Supp. 432, 437 (S.D.N.Y.  1994)  (quoting
Blacks Law Dictionary 520 (5th ed. 1979)).

     29     State  v. Anthony, 816 P.2d 1377, 1378 (Alaska  1991)
(quoting Dobbert v. Florida, 432 U.S. 282, 292 (1977)).

     30    Id.; see De Veau v. Braisted, 363 U.S. 144, 160 (1960).

     31     See  Smith, 538 U.S. at 92; Kansas v. Hendricks,  521
U.S. 346, 361-69 (1997); United States v. Ward, 448 U.S. 242, 248-
49 (1980).

     32    Ch. 41, SLA 1994.

     33    Smith v. Doe, 538 U.S. 84, 105-06 (2003).

     34     Alaska Const. art. I,  7 (No person shall be deprived
of  life, liberty, or property, without due process of law.   The
right of all persons to fair and just treatment in the course  of
legislative   and   executive   investigations   shall   not   be
infringed.).

     35     Article  I,  section  1  of the  Alaska  Constitution
provides:

          This   constitution  is  dedicated   to   the
          principles  that all persons have  a  natural
          right  to  life,  liberty,  the  pursuit   of
          happiness,  and the enjoyment of the  rewards
          of  their own industry; that all persons  are
          equal   and   entitled   to   equal   rights,
          opportunities, and protection under the  law;
          and   that  all  persons  have  corresponding
          obligations to the people and to the State.
          
     36    The state refers us to State v. Coon, 974 P.2d 386, 391-
92   (Alaska  1999)  (We  construe  our  state  [ex  post  facto]
prohibition   no  differently  than  the  federal  prohibition.);
Anthony, 816 P.2d at 1378 n.1 (The parties agree that the ex post
facto prohibition of the Alaska Constitution is the same as  that
of the United States Constitution.); State v. Creekpaum, 753 P.2d
1139,  1144 (Alaska 1988); and Danks v. State, 619 P.2d 720,  722
(Alaska 1980).

     37     Cf.  Smith, 538 U.S. at 105-06 (holding that applying
ASORA to Doe does not violate federal ex post facto clause).

     38    Danks, 619 P.2d at 722 (citing and approvingly quoting
from Gryger v. Burke, 334 U.S. 728, 732 (1948) (The sentence as a
fourth  offender  or habitual criminal is not  to  be  viewed  as
either  a  new  jeopardy or additional penalty  for  the  earlier
crimes.  It is a stiffened penalty for the latest crime, which is
considered to be an aggravated offense because it is a repetitive
one.)).   We  there  considered whether revoking  Dankss  drivers
license  because  he  had  committed  two  offenses  before   the
revocation  statute was enacted violated the  federal  and  state
prohibitions on ex post facto laws.  Id.  Noting that the Supreme
Court  had  rejected  a  similar attack on  a  habitual  offender
statute  that  provided enhanced punishment for a  fourth  felony
conviction, we affirmed the revocation.  Id.

     39    Creekpaum, 753 P.2d at 1143.  Creekpaum contended that
an  extended  statute  of limitations was an unconstitutional  ex
post  facto  law  as  applied to him.   Id.  at  1140.   When  he
allegedly  committed  the  offense,  the  applicable  statute  of
limitations  was five years.  Id.  Three years later  the  Alaska
Legislature  retroactively  enlarged  the  period  for   bringing
charges  of sexual abuse of a minor.  Id.  Creekpaum was indicted
five  years  and  two  months after  the  alleged  offense.   Id.
Relying  on decisions of the United States Supreme Court and  the
Seventh  and  Ninth Circuit Courts of Appeals, we concluded  that
because  the extension did not increase the punishment or  change
the  elements of the offense necessary to establish guilt, it did
not violate the Federal or the Alaska Constitution.  Id. at 1143-
44.

     40     Anthony, 816 P.2d at 1378.  Anthony raised an ex post
facto challenge to a statute making incarcerated felons convicted
of  crimes  prior to the statutes effective date  ineligible  for
permanent fund dividends.  Id. at 1377-78.  Relying in part on De
Veau  v.  Braisted,  363  U.S. 144, 160 (1960),  which  upheld  a
statute  that was enacted for valid regulatory purposes and  that
was  not  punitive  in  effect, we  concluded  that  because  the
statutes purposes were compensatory rather than punitive  it  did
not  violate  either the federal or state ex post  facto  clause.
Id.

     41    Coon, 974 P.2d at 391-92.  Coon argued that judicially
changing the standard of scientific evidence violated the federal
and  state  ex  post facto clauses.  We rejected  Coons  argument
because the ex post facto prohibition applies only to legislative
acts, not to judicial decisions.  Id. at 391.  In dictum, we also
noted  that  even  if  we  applied the  prohibition  to  judicial
decisions, the Supreme Court, in Thompson v. Missouri,  171  U.S.
380, 387-88 (1898), had upheld against ex post facto challenge  a
statute that made admissible in a criminal case evidence that was
not  admissible  under  the  rules of  evidence  as  enforced  by
judicial decisions when the offense was committed.

     42    Danks, 619 P.2d at 722.

     43     See Blue v. State, 558 P.2d 636, 641-43 (Alaska 1977)
(pre-indictment right to counsel); Lemon v. State, 514 P.2d 1151,
1154 n.5 (Alaska 1973) (right of confrontation); Lanier v. State,
486 P.2d 981, 986 (Alaska 1971) (right of confrontation); Whitton
v.  State,  479  P.2d  302, 309 (Alaska 1970) (double  jeopardy);
Baker  v.  City of Fairbanks, 471 P.2d 386, 401-02 (Alaska  1970)
(right  to  jury trial); Roberts v. State, 458 P.2d  340,  342-43
(Alaska 1969) (pre-trial right to counsel).

     44    Accord Arizona v. Casey, 71 P.3d 351, 354 (Ariz. 2003)
(Normally  we  interpret clauses in the Arizona  Constitution  in
conformity with decisions of the United States Supreme Court  and
its  interpretation  of  similar clauses  in  the  United  States
Constitution.  However, interpretation of the state  constitution
is,  of  course, our province. (citation and internal  quotations
omitted)).

     45     Cf. Robert F. Williams, State Courts Adopting Federal
Constitutional Doctrine: Case-By-Case Adoptionism or  Prospective
Lockstepping?,  46  Wm.  &  Mary  L.  Rev.  1499,   1521   (2005)
([S]tatements   [adopting   federal   constitutional    doctrine]
.  .  .  should neither bind lawyers in their arguments  nor  the
court  itself  in future cases.  It is beyond the state  judicial
power  to  incorporate the Federal Constitution  and  its  future
interpretations  into  the  state  constitution.   (Emphasis   in
original.)).

     46     The  principle  of stare decisis  requires  that  two
conditions be met to depart from precedent: We must conclude that
the  decision  was  erroneous when it was decided  and  that  the
change  represents good public policy such that  more  good  than
harm  [will]  result from the departure.  State v.  Semancik,  99
P.3d 538, 540 (Alaska 2004).  Because our previous decisions have
not  foreclosed the possibility of relief to Doe, we do not  need
to consider whether these two requirements have been met.

     47     See  Coon, 974 P.2d at 391-92; State v. Anthony,  816
P.2d  1377,  1378  (Alaska 1991); Creekpaum, 753  P.2d  at  1143;
Danks, 619 P.2d at 722.

     48    See Doe I v. Otte, 259 F.3d 979, 993-95 (9th Cir. 2001)
(holding  that  applying ASORA to Doe violated  federal  ex  post
facto clause), revd sub nom. Smith v. Doe, 538 U.S. 84 (2003).

     49    Smith v. Doe, 538 U.S. 82, 92 (2003); see also Mullaney
v.  Wilbur,  421  U.S. 684, 691 (1975) ([S]tate  courts  are  the
ultimate expositors of state law.).

     50     See Lemon, 514 P.2d at 1154 n.5 (explaining that this
court may adopt its own interpretation of Alaska Constitution  as
long  as  it meets minimum standards set by United States Supreme
Court interpreting Federal Constitution).

     51     As  we  stated in Doe v. State, Department of  Public
Safety (Doe A):

          We  may not undermine the minimum protections
          established  by  the  United  States  Supreme
          Courts   interpretations   of   the   Federal
          Constitution.    But   we   have   repeatedly
          explained that
          
               we  are  free, and we are  under  a
               duty,    to    develop   additional
               constitutional      rights      and
               privileges    under   our    Alaska
               Constitution   if  we   find   such
               fundamental  rights and  privileges
               to  be  within  the  intention  and
               spirit  of our local constitutional
               language  and  to be necessary  for
               the  kind  of  civilized  life  and
               ordered  liberty which  is  at  the
               core    of    our    constitutional
               heritage.
               
92 P.3d 398, 404 (Alaska 2004) (quoting Baker, 471 P.2d at 402).

     52    Id.

     53    Michigan v. Long, 463 U.S. 1032, 1041 (1983); see also
Lawrence  Friedman,  Reactive  and Incompletely  Theorized  State
Constitutional  Decision-Making, 77 Miss.  L.J.  265,  313  (Fall
2007) ([T]he court should explicate the basis for a difference of
opinion  over  the  meaning or application  of  a  constitutional
provision that is textually similar  that the state court  should
provide  a deeper justification for a constitutional ruling  than
simple  disagreement with a majority of the United States Supreme
Court.  There is nothing wrong with such disagreement, of course;
the   Supreme  Court  is  not  infallible.   But  .  .  .   state
constitutional decisions that lack meaningful rationales for  the
courts  interpretive  and  doctrinal  choices  .  .  .  fail   to
contribute meaningfully to constitutional discourse and may  well
impede the efficient administration of justice.).

     54    Smith, 538 U.S. at 92; see also United States v. Ward,
448  U.S. 242, 248-49 (1980); Russell v. Gregoire, 124 F.3d 1079,
1084  (9th Cir. 1997) (referring to the two-step inquiry  as  the
intent-effects test).

     55    Smith, 538 U.S. at 92.

     56    Id.

     57     Patterson v. State, 985 P.2d 1007, 1011 (Alaska  App.
1999), overruled in part on other grounds, Doe A, 92 P.3d at  412
n.83.

     58     Hudson v. United States, 522 U.S. 93, 99-100  (1997).
The   Supreme  Court  has  applied  this  inquiry  in  addressing
constitutional issues of double jeopardy, ex post facto, and self-
incrimination claims.  See, e.g., Kansas v. Hendricks,  521  U.S.
346,  360-61 (1997) (applying the intent-effects test  to  double
jeopardy  and  ex post facto claims); Ward, 448  U.S.  at  248-49
(applying  test  to  claim alleging violation  of  right  against
compulsory self-incrimination).

     59    Smith, 538 U.S. at 92.

     60    Id.

     61     This  assumption also makes it unnecessary to  decide
whether,  as  some commentators have suggested, the court  should
employ   heightened  scrutiny  when  reviewing  the  legislatures
intent.  See, e.g., Wayne A. Logan, The Ex Post Facto Clause  and
the Jurisprudence of Punishment, 35 Am. Crim. L. Rev. 1261, 1288-
91 (1998).

     62     The  Supreme  Court stated in  Smith  that  only  the
clearest proof would suffice to transform a remedy designated  by
the  legislature  as civil into a criminal penalty.   Smith,  538
U.S.  at  92.   But  in deciding whether a statute  violates  the
Alaska   Constitution   we  accord  the  challenged   statute   a
presumption  of constitutionality.  Alaska Civil Liberties  Union
v.  State,  122  P.3d  781, 785 (Alaska 2005)  (A  constitutional
challenge   to   a   statute  must  overcome  a  presumption   of
constitutionality.).    We  adhere   to   this   approach   here.
Consequently,   imposing  a  heightened   presumption   requiring
clearest proof of punitive effect could threaten rights protected
by  the  Alaska Constitution and might be inconsistent  with  the
responsibilities of this court.  See State v. Murtagh,  169  P.3d
602,  609  (Alaska 2007) (It is the obligation of the  courts  to
interpret [provisions of the Alaska Constitution granting  rights
to  those  accused  of  crime] so that they  may  be  applied  in
particular  cases and to ensure that the rights they provide  are
not  infringed  by  any  form  of state  action.   Under  Alaskas
constitutional structure of government, the judicial branch . . .
has  the constitutionally mandated duty to ensure compliance with
the  provisions of the Alaska Constitution, including  compliance
by the legislature. ).

     63    Ward, 448 U.S. at 249; Kennedy v. Mendoza-Martinez, 372
U.S.  144,  168-69 (1963); see also Patterson, 985 P.2d  at  1013
(applying Mendoza-Martinez factors to ex post facto challenge  to
ASORA).   The  Supreme  Court  has applied  the  Mendoza-Martinez
factors  to a broad array of legislative enactments to  determine
whether  a  sanction is civil or criminal in nature.  See,  e.g.,
Smith,   538   U.S.  at  92,  97-105  (involving   civil-criminal
distinction in sex offender registration laws); Hudson, 522  U.S.
at   104-05   (concerning  monetary  penalties  and  occupational
debarment for banking law violations); Hendricks, 521 U.S. at 361-
71  (concerning civil commitment for sexually violent predators);
United States v. Salerno, 481 U.S. 739, 747-51 (1987) (addressing
whether   preventative  detention  served  remedial  purpose   of
preventing   danger  to  community);  Ward,  448  U.S.   at   249
(concerning monetary penalties assessed for violating Clean Water
Act).

     64    Mendoza-Martinez, 372 U.S. at 168-69.

     65    Hudson, 522 U.S. at 101 (quoting Mendoza-Martinez, 372
U.S. at 169).

     66    Mendoza-Martinez, 372 U.S. at 168.

     67    Hudson, 522 U.S. at 105; De Veau v. Braisted, 363 U.S.
144,  160  (1960);  Hawker v. New York,  170  U.S.  189,  196-200
(1898).

     68     Smith,  538  U.S.  at 100.  The  reality  seems  much
different.   See infra notes 80, 81, and 85.  The  argument  that
registered  sex offenders are free to change jobs and  residences
calls  to  mind Anatole Frances view of the majestic equality  of
the  laws,  which forbid rich and poor alike to sleep  under  the
bridges,  to  beg  in  the streets, and  to  steal  their  bread.
Anatole France, The Red Lily 75 (The Modern Library 1917) (1894).
We  cannot allow the mere appearance of equal freedom to  obscure
the reality of its denial.

     69    Smith, 538 U.S. at 111 (Stevens, J., dissenting).

     70     See  AS 12.63.010; AS 11.56.840 (defining failure  to
register   which  includes  failure to file  change  of  address,
failure  to  re-register annually or quarterly,  and  failure  to
supply   all   required  information   as  class  A  misdemeanor,
punishable by up to one year in jail and up to $10,000 fine);  AS
12.55.035(b)(5);  AS 12.55.135(a).  Effective  January  1,  2009,
failure  to  register will also include failure to  file  written
notice  of  the  establishment of  or  change  to  an  e-mail  or
messaging address or internet communication identifier.  Ch.  42,
1, SLA 2008.

     71    Doe v. State, Dept of Pub. Safety (Doe A), 92 P.3d 398,
409 (Alaska 2004).

     72    See id.

     73    ASORA defines aggravated sex offense as:

          (A)   a crime under AS 11.41.100(a)(3), or  a
          similar law of another jurisdiction, in which
          the person committed or attempted to commit a
          sexual  offense, or a similar  offense  under
          the laws of the other jurisdiction . . . .
          (B)   a crime under AS 11.41.110(a)(3), or  a
          similar law of another jurisdiction, in which
          the  person committed or attempted to  commit
          one of the following crimes, or a similar law
          of another jurisdiction:
          (i)  sexual assault in the first degree;
          (ii) sexual assault in the second degree;
          (iii)      sexual  abuse of a  minor  in  the
          first degree; or
          (iv)  sexual abuse of a minor in  the  second
          degree; or
          (C)  a crime, or an attempt, solicitation, or
          conspiracy  to  commit  a  crime,  under   AS
          11.41.410,  11.41.434, or a  similar  law  of
          another  jurisdiction or a similar  provision
          under a former law of this state.
          
AS 12.63.100(1).

     74    AS 12.63.010(d), .020(a).

     75    AS 12.63.010(c).

     76    Doe v. State, Dept of Pub. Safety (Doe A), 92 P.3d 398,
409 (Alaska 2004); see also Smith v. Doe, 538 U.S. 84, 111 (2003)
(Stevens,  J.,  dissenting) (stating that these  obligations  are
comparable  to  the  duties imposed on other convicted  criminals
during periods of supervised release or parole).

     77    Smith, 538 U.S. at 115 (Ginsburg, J., dissenting).

     78    Doe I v. Otte, 259 F.3d 979, 987 (9th Cir. 2001), revd
sub nom. Smith v. Doe, 538 U.S. 84 (2003).

     79    Id. at 988.

     80     Smith,  538 U.S. at 109 n.* (Souter, J., concurring);
see  also  E.B. v. Verniero, 119 F.3d 1077, 1102 (3d  Cir.  1997)
(Employment and employment opportunities have been jeopardized or
lost.   Housing and housing opportunities have suffered a similar
fate.); Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997) (noting
that  sex offenders have suffered harm in the aftermath of public
dissemination   ranging  from public shunning,  picketing,  press
vigils,  ostracism, loss of employment, and eviction, to  threats
of violence, physical attacks, and arson).

     81    See, e.g., Neighbor Convicted of Stalking Sex Offender,
Akron   Beacon  Journal,  Dec.  13,  2007,  available  at  EBSCO,
2W62W62425089428  (vigilantism);  John  R.  Ellement  &   Suzanne
Smalley,  Sex Crime Disclosure Questioned: Maine Killings  Refuel
Debate  Over  Registries, Boston Globe, Apr.  18,  2006,  at  A1,
available  at  2006  WLNR  6463014 (vigilantism);  Kira  Millage,
Killer  of  2  Sex  Offenders  Pleads Guilty,  Bellingham  Herald
(Wash.),  Mar.  10, 2006, at 1A, available at 2006  WLNR  5238375
(vigilantism);  Carolyn Starks & Jeff Long, Abuser  Killed  Self,
Family Says, Chicago Trib., May 27, 2005, at 1, available at 2005
WLNR  23429797 (suicide); Cara Buckley, Town Torn Over  Molesters
Suicide,  Miami Herald, Apr. 23, 2005, at 1A, available  at  2005
WLNR 23022255 (suicide); Brian MacQuarrie, Man Defends Attacks on
Sex  Offenders,  Crusader Gets Jail Term, Boston Globe,  Dec.  5,
2004,  at A1, available at 2004 WLNR 13142566 (vigilantism);  see
also  Richard Tewksbury, Collateral Consequences of Sex  Offender
Registration,  21 J. Contemp. Crim. Just. 67, 75  (2005)  (noting
that  in a study of 121 registered sex offenders in Kentucky,  47
percent  reported being harassed in person, 16.2 percent reported
being  assaulted,  28.2 percent reported receiving  harassing  or
threatening telephone calls, and 24.8 percent reported  receiving
harassing  or  threatening mail as a result of  being  listed  on
publicly accessible registries); Alvin Malesky & Jeanmarie  Keim,
Mental Health Professionals Perspectives on Sex Offender Registry
Web  Sites,  13 Sexual Abuse: J. Res. & Treatment 53,  59  (2001)
(reporting that in a study of 133 mental health professionals who
work  with  sex  offenders, 62.9 percent of respondents  believed
that  sex  offenders  listed  in  public  sex  offender  registry
websites will become targets of vigilantism in the community).

     82    Smith, 538 U.S. at 100; see also Smith, 538 U.S. at 109
n.*  (Souter,  J., concurring) (I seriously doubt that  the  Acts
requirements  are less harsh than the sanctions  of  occupational
debarment . . . .).

     83    Hudson v. United States, 522 U.S. 93, 105 (1997).

     84    Hawker v. New York, 170 U.S. 189, 200 (1898).

     85    See, e.g., Jan Hollingsworth, Protesters Hound Owner of
Pet  Shop,  Tampa  Trib.,  Jan. 27,  2008,  available  at  EBSCO,
2W62W62852777149  (describing  community  protests  that   forced
registered  sex offender to close his business); Corey Kilgannon,
Threats  of  Violence  as  Homes for  Sex  Offenders  Cluster  in
Suffolk, N.Y. Times, Oct. 9, 2006, at B1, available at 2006  WLNR
17438262   (recounting  neighborhoods  efforts   to   drive   out
registrants);  Emily  Ramshaw,  Sex  Offender  Label   Makes   No
Distinction:  For Many Men, Registry Has Lasting and  Devastating
Effects,  Dallas Morning News, Oct. 2, 2006, available at  EBSCO,
2W62W61689001016 (stating that registrant has lost multiple  jobs
after employers learned he was on sex offender registry); Carolyn
Marshall,  Taking the Law into their Own Hands, N.Y. Times,  Apr.
20,  2004, at A12, available at 2004 WLNR 4787938 (describing how
residents  put  pressure  on  landlords  to  refuse  housing   to
registered offenders); see also Tewksbury, supra note 81,  at  75
(noting that 42.7 percent of respondents reported loss of job and
45.3  percent of respondents reported loss or denial of place  to
live  after  being  listed  on publicly  accessible  registries);
Richard  G.  Zevitz  &  Mary Ann Farkas, Sex  Offender  Community
Notification:  Managing High Risk Criminals or  Exacting  Further
Vengeance?,  18 Behav. Sci. & Law 375, 381 (2000)  (describing  a
study  consisting  of  face-to-face interviews  with  thirty  sex
offenders  throughout  Wisconsin  subject  to  various  forms  of
community notification, and noting that 83 percent of respondents
reported exclusion of residence and 57 percent reported  loss  of
employment as a direct result of notification).

     86     State  v. Myers, 923 P.2d 1024, 1043-44 (Kan.  1996),
cert.   denied,  521  U.S.  1118  (1997)  (holding  that   public
dissemination provision of Kansas registration act, as applied to
sex  offenders  who committed their crimes before acts  effective
date,   violates   ex  post  facto  clause   of   United   States
Constitution).

     87     See  Alaska Department of Public Safety, Sex Offender
Registration/Child       Kidnapper       Central        Registry,
http://www.dps.state.ak.us/sorweb/sorweb.aspx (Using  information
from  this  site  to  commit  a  crime  may  result  in  criminal
prosecution.) (last visited July 21, 2008).

     88    13 AAC 09.050(a).

     89      AS   40.25.110(a)   (Unless  specifically   provided
otherwise, the public records of all public agencies are open  to
inspection by the public . . . .).

     90    42 U.S.C.  14071(e)(2) (The release of information . .
.  shall  include the maintenance of an Internet site  containing
such information that is available to the public and instructions
on  the  process for correcting information that a person alleges
to be erroneous.); see 13 AAC 09.050(a); AS 18.65.087(h).

     91     Patterson v. State, 985 P.2d 1007, 1013 (Alaska  App.
1999), overruled in part on other grounds, Doe A, 92 P.3d at  412
n.83.

     92    Doe A, 92 P.3d at 410.

     93     Otte, 259 F.3d at 987-88, revd sub nom. Smith v. Doe,
538 U.S. 84 (2003).

     94    Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).

     95    Otte, 259 F.3d at 989, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).

     96     Smith, 538 U.S. at 97 (citing Otte, 259 F.3d at 989);
see also Pataki, 120 F.3d at 1284.

     97     See, e.g., Otte, 259 F.3d at 989, revd sub nom. Smith
v. Doe, 538 U.S. 84 (2003).

     98    E.B. v. Verniero, 119 F.3d 1077, 1115-19 (3d Cir. 1997)
(Becker, J., concurring in part and dissenting in part); see also
Smith,  538  U.S.  at  115-16 (Ginsburg,  J.,  dissenting).   One
commentator  suggests  that dissemination  provisions  cause  sex
offenders  to suffer from nonlegal sanctions that have little  to
do  with prevention and have much more to do with reciprocity and
a  norm of sanctioning.  Doron Teichman, Sex, Shame, and the Law:
An  Economic  Perspective on Megans Laws, 42 Harv. J.  on  Legis.
355, 399 (2005).

     99    Smith, 538 U.S. at 115 (Ginsburg, J., dissenting); see
also Smith, 538 U.S. at 111 (Stevens, J., dissenting); Doe A,  92
P.3d  at  409;  Andrea  E.  Yang,  Comment,  Historical  Criminal
Punishments, Punitive Aims and Un-Civil Post-Custody Sanctions on
Sex Offenders: Reviving the Ex Post Facto Clause as a Bulwark  of
Personal  Security and Private Rights, 75 U. Cin. L.  Rev.  1299,
1328 n.199 (2007) (citing Joan Petersilia, Community Corrections:
Probation,  Parole and Intermediate Sanctions  1,  19-24  (Oxford
1998))  (noting that because actual supervision of  parolees  and
probationers   is   minimal  due  to  high  supervisory   officer
caseloads, only about half of probationers comply with  probation
requirements   and   therefore  suggesting  that   sex   offender
restrictions  may  actually  exceed  those  of  probationers  and
parolees).

     100    Mendoza-Martinez, 372 U.S. at 168.

     101    Doe I v. Otte, 259 F.3d 979, 989 (9th Cir. 2001), revd
sub nom. Smith v. Doe, 538 U.S. 84 (2003).

     102    See AS 12.63.100(6)(C)(i); AS 11.41.434-.438; Hentzer
v.  State,  613  P.2d  821, 826 (Alaska 1980)  (Where  the  crime
involved  may  be  said to be malum in se,  that  is,  one  which
reasoning members of society regard as condemnable, awareness  of
the  commission  of  the  act  necessarily  carries  with  it  an
awareness  of  wrongdoing.  In such a  case  the  requirement  of
criminal intent is met upon proof of conscious action . . . .).

     103    See infra Part III.C.5; Kansas v. Hendricks, 521 U.S.
346, 362 (1997) (determining that statutory scheme allowing civil
commitment of sexually violent predators is not punitive, in part
because  no  finding  of scienter is required,  since  commitment
determination  is  based  on  mental abnormality  or  personality
disorder rather than on criminal intent).

     104     State v. Guest, 583 P.2d 836, 839 (Alaska 1978)  (To
refuse  such  a  defense  would be to impose  criminal  liability
without any criminal mental intent.).  AS 11.41.445(b) provides:

          In   a   prosecution  under   AS   11.41.410-
          11.41.440,  whenever  a  provision   of   law
          defining  an offense depends upon  a  victims
          being   under  a  certain  age,  it   is   an
          affirmative defense that, at the time of  the
          alleged offense, the defendant
          (1)   reasonably believed the  victim  to  be
          that age or older; and
          (2)   undertook reasonable measures to verify
          that the victim was that age or older.
          
     105    Mendoza-Martinez, 372 U.S. at 168.

     106    State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).  We
there identified as objectives of sentencing:

          [R]ehabilitation  of  the  offender  into   a
          noncriminal  member of society, isolation  of
          the offender from society to prevent criminal
          conduct  during  the period  of  confinement,
          deterrence of the offender himself after  his
          release from confinement or other penological
          treatment,  as  well as deterrence  of  other
          members  of  the community who might  possess
          tendencies toward criminal conduct similar to
          that   of   the   offender,   and   community
          condemnation  of the individual offender,  or
          in  other  words, reaffirmation  of  societal
          norms  for the purpose of maintaining respect
          for the norms themselves.
          
Id.  The legislature subsequently codified the Chaney factors:

          In   imposing   sentence,  the  court   shall
          consider
          (1)    the   seriousness  of  the  defendants
          present   offense   in  relation   to   other
          offenses;
          (2)    the  prior  criminal  history  of  the
          defendant     and    the    likelihood     of
          rehabilitation;
          (3)   the  need  to confine the defendant  to
          prevent further harm to the public;
          (4)  the circumstances of the offense and the
          extent to which the offense harmed the victim
          or endangered the public safety or order;
          (5)  the effect of the sentence to be imposed
          in  deterring the defendant or other  members
          of society from future criminal conduct;
          (6)  the effect of the sentence to be imposed
          as  a  community condemnation of the criminal
          act and as a reaffirmation of societal norms;
          and
          (7)  the restoration of the victim and the community.

AS 12.55.005.

     107    Mendoza-Martinez, 372 U.S. at 168.  The Third Circuit
Court  of  Appeals  has  explained  its  interpretation  of   the
distinction between the three terms:

          Retribution  is vengeance for its  own  sake.
          It  does not seek to affect future conduct or
          solve  any problem except realizing  justice.
          Deterrent  measures  serve  as  a  threat  of
          negative  repercussions to discourage  people
          from  engaging in certain behavior.  Remedial
          measures, on the other hand, seek to solve  a
          problem . . . .
          
Artway  v.  Attorney Gen. of N.J., 81 F.3d 1235,  1255  (3d  Cir.
1996).

     108    AS 12.63.100(6), which defines sex offense, indicates
that  ASORA applies to persons convicted of a range of  offenses,
including  AS 11.41.427, sexual assault in the fourth  degree,  a
class A misdemeanor, and AS 11.41.434, sexual abuse of a minor in
the  first degree, an unclassified felony (the most serious  type
of felony).

     109    AS 12.63.020.

     110    Kansas v. Hendricks, 521 U.S. 346, 362 (1997).

     111     Id.;  see Kan. Stat. Ann.  59-29a02(a),  59-29a03(a)
(2000).

     112    Hendricks, 521 U.S. at 362.

     113    AS 12.63.100(5).

     114    Smith, 538 U.S. at 102.

     115    Hudson v. United States, 522 U.S. 93, 105 (1997).

     116    Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).

     117    Id.

     118    Smith, 538 U.S. at 105.

     119    Id.

     120     Russell v. Gregoire, 124 F.3d 1079, 1091  (9th  Cir.
1997); see also Wash. Rev. Code  4.24.550(1)(c)-(e) (2005).

     121     Femedeer v. Haun, 227 F.3d 1244, 1251-52 & n.3 (10th
Cir. 2000); see also Utah Code Ann.  77-27-21.5(1)(f)(v) (2003).

     122    AS 12.63.100(5).

     123     See  Whitehead v. State, 985 P.2d 1019 (Alaska  App.
1999) (defendant charged with three counts of sexual assault  but
who  pleaded guilty to coercion did not have to register  because
he was not convicted sex offender under ASORA).

     124    AS 12.63.100(3).

     125    AS 11.41.434(a)(1).

     126    See AS 12.63.100(3).

     127    See Smith, 538 U.S. at 113 (Stevens, J., dissenting):

          No  matter how often the Court may repeat and
          manipulate multifactor tests that  have  been
          applied  in wholly dissimilar cases involving
          only  one  or two of these three  aspects  of
          these  statutory  sanctions,  it  will  never
          persuade   me   that  the  registration   and
          reporting  obligations that  are  imposed  on
          convicted sex offenders and on no one else as
          a result of their convictions are not part of
          their punishment.
          
(Emphasis in original.)

     128    Mendoza-Martinez, 372 U.S. at 168-69.

     129    Doe I v. Otte, 259 F.3d 979, 991 (9th Cir. 2001), revd
sub nom. Smith v. Doe, 538 U.S. 84 (2003).

     130    Ch. 41,  1, SLA 1994.

     131     Otte, 259 F.3d at 991, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).

     132    Smith, 538 U.S. at 102 (citing United States v. Ursery,
518 U.S. 267, 290 (1996)).

     133    Mendoza-Martinez, 372 U.S. at 169.

     134    Otte, 259 F.3d at 992, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).

     135    Id. at 994.

     136    Smith, 538 U.S. at 103-05.

     137    Id. at 103.

     138    Id. at 104-05.

     139    Id. at 105.

     140    Ch. 41,  1, SLA 1994.

     141     Megans Law takes its name from Megan Kanka, a seven-
year-old  girl sexually assaulted and murdered in 1994  near  her
home  in  New  Jersey.  The man convicted of  her  murder  was  a
neighbor  who,  unbeknownst  to the victims  parents,  had  prior
convictions  for  sex  offenses  against  children.   Her  murder
generated a national movement for mandatory registration for  sex
offenders  and  community notification.  See  generally  Jonathon
Simon, Megans Law: Crime and Democracy in Late Modern America, 25
Law & Soc. Inquiry 1111, 1134-35 (2000).

     142    See supra note 108.

     143    See Smith, 538 U.S. at 117 (Ginsburg, J., dissenting)
(And  meriting heaviest weight in my judgment, the Act  makes  no
provision   whatever  for  the  possibility   of   rehabilitation
.  .  .  .).   Beginning January 1, 2009, ASORA allows  for  some
judicial determination of a registrants risk: the court may order
a  defendant convicted [after January 1, 2009] of a violation  of
AS  11.41.410  or 11.41.434 where the victim of the  offense  was
under  13 years of age to be subject to electronic monitoring  up
to the maximum length of probation on the persons release from  a
correctional  facility.  Ch. 42,  2, 6, SLA 2008.   But  even  as
amended  to provide for this limited risk determination  for  the
two  specified  crimes,  ASORA does  not  authorize  a  court  to
determine  that  a  registrant  poses  no  risk  to  society  and
consequently  to  altogether  relieve  him  of  registration  and
disclosure obligations.

     144    Smith, 538 U.S. at 117 (Ginsburg, J., dissenting).

     145    Otte, 259 F.3d at 983, revd sub nom. Smith v. Doe, 538
U.S. 84 (2003).

     146    AS 12.63.010(d)(2).

     147    AS 12.63.100(5).

     148    See supra notes 70, 71, and 75 and accompanying text.

     149    See supra notes 72 and 74 and accompanying text.

     150    See Conn. Gen. Stat.  54-255(a), (b) (2001).

     151    State v. Myers, 923 P.2d 1024, 1043 (Kan. 1996).

     152    Id. at 1043.

     153    Roe v. Office of Adult Prob., 125 F.3d 47, 55 (2d Cir.
1997).

     154    Conn. Gen. Stat.  54-255(c) (2001).  For example, a sex
offender  convicted of a sexual offense against a minor  who,  at
the  time  of  the  offense, was under the age  of  eighteen  and
related  to the sex offender within a specified degree of kindred
may  petition  the court to order restricted dissemination.   Id.
54-255(c)(3).   The  court  may order the  Department  of  Public
Safety   to   restrict  the  dissemination  of  the  registration
information to law enforcement purposes only and to not make such
information available for public access, provided the court finds
that  dissemination  of  the  registration  information  is   not
required for public safety.  Id.  54-255(c).

     155     Conn. Dept of Pub. Safety v. Doe, 538 U.S.  1,  9-10
(2003) (Souter, J., concurring).  For example, a court may exempt
a  convict  from  registration if his offense was sexual  contact
with a minor aged between thirteen and sixteen years of age while
the  offender was more than three years older than the minor,  if
the  offender was under the age of nineteen at the  time  of  the
offense.  Conn. Gen. Stat.  54-251(b) (2001).

     156    Smith v. Doe, 538 U.S. 82, 103 (2003).

     157    Given the significance of the states interest here, the
author of this opinion emphasizes that in his view the result the
court   reaches  today  does  not  mean  that  no  sex   offender
registration  act  could  ever  satisfy  Alaskas  ex  post  facto
standard.  Although six of the factors convince us that ASORA  as
written   is  punitive,  registration  and  disclosure  are   not
inherently punitive.

     158    Smith v. Doe, 538 U.S. 84, 110-14 (2003) (Stevens, J.,
dissenting); Smith v. Doe, 538 U.S. 84, 114-18 (2003)  (Ginsburg,
J., dissenting).

     159     Doe I v. Otte, 259 F.3d 979, 993-95 (9th Cir. 2001),
revd sub nom. Smith v. Doe, 538 U.S. 84 (2003).

     160    Because we decide that applying ASORA to Doe violates
the  protection against ex post facto laws afforded by the Alaska
Constitution,  we  do  not  reach  Does  due  process  arguments.
Because ASORA requires both affirmative conduct by the registrant
(in  registering,  re-registering,  and  disclosing)  and  public
dissemination  of most of the disclosed information,  we  do  not
have  to decide whether a statute requiring only registration  or
providing  only for distribution of otherwise public  information
from  an offenders criminal file would have been an ex post facto
law.  And because we conclude that ASORA is an ex post facto  law
under  the same standard for reviewing ex post facto claims under
the  Alaska  Constitution  that courts apply  under  the  Federal
Constitution, we decline to adopt the standard Doe advocates.

1    State v. Coon, 974 P.2d 386, 391-92 (Alaska 1999).

     2    See Smith v. Doe, 538 U.S. 84 (2003).

     3    Danks v. State, 619 P.2d 720, 722 (Alaska 1980).

     4    Smith, 538 U.S. at 105.

     5     Alaska  Civil Liberties Union v. State, 122 P.3d  781,
787   (Alaska  2005)  (Article  I,  section  1  of   the   Alaska
Constitution   requires  equal  treatment  of   those   similarly
situated.).

     6     State,  Dept  of  Health  &  Soc.  Servs.  v.  Planned
Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001).

     7     Baker  v.  City  of Fairbanks, 471  P.2d  386,  401-02
(Alaska 1970).

     8    Alaska Const. art. I,  9.

     9    Whitton v. State, 479 P.2d 302, 309-10 (Alaska 1970).

     10   Baker, 471 P.2d at 401.

     11    See State v. Coon, 974 P.2d 386, 391-92 (Alaska 1999);
State  v.  Anthony, 816 P.2d 1377, 1378 (Alaska 1991);  State  v.
Creekpaum, 753 P.2d 1139, 1144 (Alaska 1988); Danks, 619 P.2d  at
722.   The Alaska Court of Appeals has employed the same analysis
for  both the Alaska and federal ex post facto clauses. Patterson
v. State, 985 P.2d 1007, 1011-13 (Alaska App. 1999), overruled on
other grounds by Doe v. State, 92 P.3d 398 (Alaska 2004).

     12   619 P.2d at 722.

13   See Gryger v. Burke, 334 U.S. 728 (1948).

     14   Danks, 619 P.2d at 722.

     15   816 P.2d at 1377-79.

     16   Id. at 1378, n.1.

     17   753 P.2d at 1140.

     18   Id. at 1143.

     19   974 P.2d at 391.

     20   Id. at 391-92.

     21   Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173,
1176  (Alaska 1993) (quoting Planned Parenthood of Se.  Penn.  v.
Casey, 505 U.S. 833, 855 (1992)).

     22   Coon, 974 P.2d at 391-92.

     23    State  v.  Dunlop,  721 P.2d 604,  610  (Alaska  1986)
(quoting  State  v.  Souter, 606 P.2d  399,  400  (Alaska  1980),
overruled  on other grounds by Dunlop, 721 P.2d at 610) (internal
quotation marks omitted)).

     24    By  1996 legislators in every state of the  union  had
enacted laws to regulate sex offenders after their release.  Doe,
538  U.S. at 89; Conn. Dept of Pub. Safety v. Doe, 538 U.S. 1,  4
(2003).

     25   See Doe, 538 U.S. at 89 (discussing 42 U.S.C.  14071).

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