Filed 6/28/04
IN THE SUPREME COURT OF CALIFORNIA
In re
S098928
LEON CASEY ALVA
Ct.App. 2/3 B142625
on Habeas Corpus.
) Los Angeles County
Super. Ct. No. 7CR02216
In In re Reed (1983) 33 Cal.3d 914 (Reed), this court held that California’s
law requiring lifelong registration as a convicted sex offender (see Pen. Code,
§ 290 et seq.)1 violated the “cruel or unusual punishment” clause of the California
Constitution (art. I, § 17) as applied to one convicted of the misdemeanor of
engaging in, or soliciting, lewd or dissolute conduct in a public place (§ 647,
subd. (a) (§ 647(a)). Here, petitioner Alva was convicted of another sex-related
misdemeanor, possession of child pornography as a first offense. (§ 311.11,
subd. (a).) He urges that mandatory lifetime sex offender registration for this
crime similarly constitutes cruel and/or unusual punishment under both the state
and federal Constitutions. We disagree. Indeed, developments since Reed
persuade us that Reed itself was incorrectly decided and must be overruled.
A necessary predicate to Reed’s holding was its conclusion that sex
registration constitutes “punishment” within the meaning of California’s cruel or
1
All further unlabeled statutory references are to the Penal Code.
1
unusual punishment clause. The Reed majority conceded that “the Legislature
may reasonably have intended . . . sex offender registration [to] serve as a law
enforcement tool to facilitate criminal investigations.” (Reed, supra, 33 Cal.3d
914, 922.) Nonetheless, after purporting to apply the multifactor test set forth in
Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 (Mendoza-Martinez), the
Reed majority determined that sex registration was punitive.
More recently, however, this court held in People v. Castellanos (1999)
21 Cal.4th 785 (Castellanos) that sex offender registration is regulatory in both
purpose and effect, and is thus not “punishment” for purposes of the state and
federal ex post facto clauses (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9).
Both the lead and concurring opinions in Castellanos concluded that Reed’s
application of the Mendoza-Martinez test was not persuasive for ex post facto
purposes.
Nonetheless, Castellanos reserved the question whether Reed remained
good law in the context of cruel and/or unusual punishment. Our concern on this
account stemmed solely from a single high court decision, Austin v. United States
(1993) 509 U.S. 602 (Austin). Austin suggested, in a context far removed from
sex offender registration laws, that a measure might impose “punishment” for
purposes of the Eighth Amendment’s ban on cruel and unusual punishment even if
it was not punitive for other constitutional purposes under the Mendoza-Martinez
test.
More recently still, the United States Supreme Court, placing extensive
reliance on the Mendoza-Martinez test, has confirmed that Alaska’s sex offender
registration act—and in particular, the statute’s provision for notification to the
public about the registrant’s identity, crime, and whereabouts—is a regulatory law,
not a punitive measure, for purposes of the federal ex post facto clause. (Smith v.
Doe (2003) 538 U.S. 84 (Smith).)
2
When Reed was decided, only five states, including California, “require[d]
any kind of sex offender registration.” (Reed, supra, 33 Cal.3d 914, 925.) Since
that time, virtually every one of the United States has enacted such a law. Many
were prompted by congressional legislation, adopted in the 1990s, which
conditions certain federal grants-in-aid on a state’s enactment of conforming sex
offender registration laws. Almost without exception, the state and federal courts
considering these state laws have found—both before and since Austin— that they
are legitimate regulatory measures, designed to assist law enforcement and to
protect the public, and are not punitive for purposes of constitutional proscriptions
against cruel and/or unusual punishment.
We now do the same. Even if Austin, supra, 509 U.S. 602, establishes a
stricter test of “punishment” for Eighth Amendment purposes than might apply
under other provisions of the Constitution, we conclude that California’s law
requiring the mere registration of convicted sex offenders is not a punitive
measure subject to either state or federal proscriptions against punishment that is
“cruel” and/or “unusual.”
In the case before us, the Court of Appeal affirmed the registration
requirement against Alva. Under compulsion of Reed, supra, 33 Cal.3d 914, the
Court of Appeal assumed that a sex offender registration requirement is
punishment for purposes of our state’s prohibition of cruel or unusual punishment.
However, the court found that requiring Alva to register as a sex offender is
neither “cruel” nor “unusual” as applied to the facts surrounding his offense.
Because we now conclude, contrary to Reed, that the registration requirement is
not punishment at all for this purpose, we will affirm the judgment of the Court of
Appeal.
3
FACTS AND PROCEDURAL BACKGROUND
After a 1999 municipal court trial, Alva was convicted of a misdemeanor
count of possession of child pornography, a violation of section 311.11,
subdivision (a). This statute makes it a public offense for any person, among other
things, to possess or control any visual matter, “the production of which
involve[d] the use of a person under the age of 18 years, knowing that the matter
depicts a person under the age of 18 years personally engaging in or simulating
sexual conduct.”2 In other words, the prohibited matter must depict actual
persons, who are actually under 18, engaged in actual or simulated sex acts, and
the violator must know that this is so. Only the first violation of section 311.11,
subdivision (a) is a misdemeanor; subsequent violations are felonies. (§ 311.11,
subd. (b).)
At a sentencing hearing on July 13, 1999, the court placed Alva on 36
months’ summary probation, with the conditions, among others, that he serve 60
days in jail (stayed pending completion of probation), pay fines totaling $1,550,
and complete sexual deviancy therapy. As required by section 290, subdivision
2
Section 311.11, subdivision (a) incorporates by reference the definition of
“sexual conduct” set forth in section 311.4, subdivision (d)(1), which defines
“sexual conduct” to include “any of the following, whether actual or simulated:
sexual intercourse, oral copulation, anal intercourse, anal oral copulation,
masturbation, bestiality, sexual sadism, sexual masochism, penetration of the
vagina or rectum by any object in a lewd or lascivious manner, exhibition of the
genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer,
any lewd or lascivious sexual act as defined in Section 288, or excretory functions
performed in a lewd or lascivious manner, whether or not any of the above
conduct is performed alone or between members of the same or opposite sex or
between humans and animals.”
4
(a)(2)(A), the court also imposed a lifetime obligation that Alva register as a sex
offender under subdivision (a)(1) of section 290.
Alva’s appeal argued, among other things, that the sex offender registration
requirement was cruel and/or unusual punishment as applied to the facts of his
case. The appellate division of the superior court affirmed the judgment. Alva’s
motion for rehearing, or in the alternative for certification to the Court of Appeal
(see Cal. Rules of Court, former rule 63), was denied, and the appellate division
issued its remittitur.
Thereafter, Alva filed an original petition for writ of habeas corpus in the
Court of Appeal, re-raising all the issues rejected in his appeal. The petition was
summarily denied. We granted review and retransferred the matter to the Court of
Appeal, Second Appellate District, Division Three, with instructions to order the
Los Angeles County Probation Department to show cause before the Court of
Appeal “why the requirement that [Alva] register as a sex offender is not cruel
and/or unusual punishment under the United States and California Constitutions.
(See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Pen. Code, §§ 311.11,
290[,] [subdivision] (a)(2)(A); People v. Castellanos (1999) 21 Cal.4th 785; In re
Reed (1983) 33 Cal.3d 914.)”
The Court of Appeal denied habeas corpus relief and discharged the order
to show cause. First, the Court of Appeal agreed with the vast majority of non-
California decisions that sex offender registration is not “punishment” for
purposes of the Eighth Amendment’s proscription of “cruel and unusual
punishments.” Second, though it questioned the continued viability of Reed,
supra, 33 Cal.3d 914 in light of Castellanos, supra, 21 Cal.4th 785, the court
concluded Castellanos had not overruled Reed’s determination that sex offender
registration is “punishment” for purposes of the California Constitution’s ban on
“cruel or unusual punishment.” (Cal. Const., art. I, § 17.) Third, in an extensive
5
analysis, the court determined that sex offender registration, even if “punishment,”
is not “cruel or unusual” as applied either to the statutory offense of possession of
child pornography or to the particular facts of Alva’s case.
Both parties sought review. Alva urged that there was no evidence he is an
actual threat to children, and that the “punishment” of sex offender registration is
cruel and/or unusual in his case. Respondent argued that sex offender registration
is not “punishment” at all within the scope of constitutional protections against
punishments that are “cruel” and/or “unusual.”3 Noting such intervening
developments as our decision in Castellanos, supra, 21 Cal.4th 785, respondent
urged that we reexamine Reed, supra, 33 Cal.3d 914, in this context.
We granted respondent’s petition, but denied Alva’s. We now agree with
the Court of Appeal that for purposes of the Eighth Amendment, sex offender
registration is a legitimate regulatory measure, not punishment, and thus falls
outside the scope of the United States Constitution’s ban on cruel and unusual
punishments. For similar reasons, and after careful reflection, we further conclude
that Reed, supra, 33 Cal.3d 914, erred in holding that sex offender registration
3
When we earlier granted and retransferred this matter, we instructed that
the Court of Appeal’s order to show cause be directed to the county’s probation
department. The Court of Appeal followed this instruction. However, Alva’s
counsel also served the order to show cause upon the Los Angeles City Attorney,
the prosecutor in Alva’s criminal case, explaining that Alva, though then still on
probation, was technically in the “custody,” not of the probation department, but
of the superior court. Thereafter, briefing both in the Court of Appeal and in this
court has been filed on behalf of “the People,” as “real party in interest,” by the
city attorney. We later referred to “the People” in an order, dated October 29,
2003, in which we solicited supplemental briefing from Alva. To avoid confusion
hereafter, we refer to the governmental interest opposing the petition simply as
“respondent.”
6
constitutes “punishment” for purposes of the California Constitution’s “cruel or
unusual punishment” clause. We will therefore overrule Reed.
DISCUSSION
California has had some form of sex offender registration requirement since
1947. (See former § 290, as enacted by Stats. 1947, ch. 1124, § 1, p. 2562.) “As
this court consistently has reiterated: ‘The purpose of section 290 is to assure that
persons convicted of the crimes enumerated therein shall be readily available for
police surveillance at all times because the Legislature deemed them likely to
commit similar offenses in the future. [Citation.]’ [Citations.] . . . [¶] . . . The
statute is thus regulatory in nature, intended to accomplish the government’s
objective by mandating certain affirmative acts.” (Wright v. Superior Court
(1997) 15 Cal.4th 521, 527 (Wright); see Castellanos, supra, 21 Cal.4th 785, 796
(lead opn. of George, C.J.); Reed, supra, 33 Cal.3d 914, 919; In re Smith (1972)
7 Cal.3d 362, 367; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825-826; see
also People v. Ansell (2001) 25 Cal.4th 868, 886 (Ansell).)
Now, as when Alva was convicted, subdivision (a)(1) of section 290
provides that every person convicted of an offense enumerated in subdivision
(a)(2)(A)—including, since 1994, a violation of section 311.11, subdivision (a)—
must register for life, so long as he or she lives, works, or studies in California,
with the police chief of each city or town or the county sheriff of each
unincorporated area, and the police chief of any public university or college
campus, where he or she resides or is located.4 The registrant must provide, inter
4
As we explained in Ansell, supra, 25 Cal.4th 868, the registration
obligation, though otherwise lifelong, is terminated for many covered offenses,
including Alva’s, if the registrants obtain certificates of rehabilitation (certificates)
from the superior court under section 4852.01 et seq. (Ansell, supra, at p. 877 &
fn. 17; see § 290.5, subd. (a).) Under a 1997 amendment to section 4852.01
(Footnote continued on next page.)
7
alia, his or her current residence and employment addresses, fingerprints and a
current photograph, and the license plate number of every vehicle he or she owns
or regularly drives, and related information as required by the California
Department of Justice (Department). (§ 290, subds. (a)(1)(A)-(D), (e)(2)(A)-(C).)
The offender must register anew within five working days of changing his
residence or location (id., subd. (a)(1)(A)), and must update his registration within
five working days after each birthday (id., subd. (a)(1)(D)). One who violates a
registration requirement that is based on a misdemeanor conviction is guilty of a
misdemeanor (id., subd. (g)(1)), and a “willful[ ]” violation is a continuing offense
(id., subd. (g)(8)).5
(Footnote continued from previous page.)
(Stats. 1997, ch. 61, § 2), those convicted of certain sex offenses against children
(not including Alva’s) are ineligible for certificates. (§ 4852.01, subd. (d).)
Moreover, even if they may and do obtain certificates, persons (not including
Alva; see discussion, post) whose registration duties stem from convictions of the
offenses listed in subdivision (a)(1) of section 290.4 (hereafter section 290.4(a)(1)
registrants) are not, except in specified circumstances, thereby relieved of their
registration obligations, but they are so relieved upon receiving full pardons from
the Governor (§ 290.5, subd. (b)). (Ansell, supra, at p. 877, fn. 16.) These
provisions are consistent with the regulatory purpose to monitor convicted sex
offenders, who are generally considered susceptible to recidivism, but to end such
special monitoring of those who have demonstrated that their likelihood of
reoffense is low.
5
Similar registration requirements are imposed, under other statutes, upon
persons convicted of certain drug offenses (Health & Saf. Code, § 11590 et seq.),
arson (Pen. Code, § 457.1), and gang-related crimes (id., § 186.30 et seq.). These
statutes, like section 290 as applicable to sex offenders, are concerned with
assisting law enforcement to prevent and detect repeat crimes of kinds deemed
highly susceptible to recidivism. (In re Luisa Z. (2000) 78 Cal.App.4th 978, 982-
983 [narcotics offender registration]; People v. Adams (1990) 224 Cal.App.3d
705, 710 [compulsive arsonist registration].)
8
The registration materials are forwarded to the Department. (§ 290,
subd. (e)(3).) Except with respect to section 290.4(a)(1) registrants (see fn. 4,
ante), “the statements, photographs, and fingerprints required by . . . section [290]
shall not be open to inspection by the public or by any person other than a
regularly employed peace officer or other law enforcement officer.” (§ 290,
subd. (i).) Alva is not a section 290.4(a)(1) registrant, because a conviction for
possession of child pornography in violation of section 311.11, subdivision (a)—
on which Alva’s registration obligation is founded—is not among those offenses
enumerated in section 290.4, subdivision (a)(1).6
The Eighth Amendment to the United States Constitution provides, in
pertinent part, that “cruel and unusual punishments [shall not be] inflicted.” The
parallel provision of the California Constitution declares that “[c]ruel or unusual
punishment may not be inflicted.” (Cal. Const., art. I, § 17.) Though many state
6
Under section 290.4, the Department of Justice must maintain a “900”
telephone number, which members of the public may call to confirm that a
specific person is a section 290.4(a)(1) registrant (id., subd. (a)(3)), and must also
supply, to county sheriffs, and to the police departments of populous cities, CD-
ROMs or other electronic media containing a list of such registrants’ names,
which members of the public may view under specified circumstances (id.,
subd. (a)(4)). Section 290.45 further authorizes a law enforcement agency, when
it reasonably suspects that a child or other member of the public may be at risk
from a section 290.4(a)(1) registrant, to disclose more complete information about
the registrant and his prior offense or offenses to persons, agencies, or
organizations the registrant is likely to encounter, and, in limited circumstances, to
authorize such persons, agencies, or organizations to disclose this information to
additional persons. (§ 290.45, subd. (a).) Section 290.45 also permits designated
law enforcement agencies to advise the public generally of the presence in its
community of certain section 290.4(a)(1) registrants who meet the statutory
criteria for “high-risk sex offenders.” (§ 290.45, subd. (b).) Again, because Alva
is not a section 290.4(a)(1) registrant, these public-inspection and public-
notification provisions do not apply to him.
9
and federal courts have spoken on the subject (see discussion post), neither we nor
the United States Supreme Court has considered the validity of a sex offender
registration requirement under the federal proscription of cruel and unusual
punishments.
Two decades ago, however, when sex offender registration statutes were
rare, this court addressed the state constitutional implications of such a scheme in
Reed, supra, 33 Cal.3d 914. There a majority concluded that the state
Constitution’s guarantee against “cruel or unusual punishment” precluded
application of section 290 to the misdemeanor offense of engaging in, or
soliciting, lewd or dissolute conduct in a public place (§ 647(a)).
This holding required a preliminary determination whether sex offender
registration was a form of “punishment” subject to the state constitutional
guaranty against punishments that are “cruel or unusual.” To resolve that issue,
the Reed majority purported to apply the multifactor test of “punishment”
enunciated by the United States Supreme Court in Mendoza-Martinez, supra,
372 U.S. 144.7
7
The issue in Mendoza-Martinez was whether a law imposing automatic
forfeiture of citizenship upon one who left or remained outside the country in
order to avoid military service during a war or national emergency was
“essentially penal in character,” and thus invalid for failure to afford due process
of law and the procedural rights guaranteed in criminal cases by the Fifth and
Sixth Amendments to the federal Constitution. (Mendoza-Martinez, supra,
372 U.S. 144, 146, 164.) As is explained in greater detail below, the Mendoza-
Martinez factors have subsequently also been applied to distinguish punitive
measures from those that are merely regulatory for purposes of other federal
constitutional provisions, including the ex post facto and double jeopardy clauses
of the federal Constitution.
10
Mendoza-Martinez suggested that a statute’s intent to impose punishment
may appear on its face, or from its legislative history. (Mendoza-Martinez, supra,
372 U.S. 144, 169.) However, Mendoza-Martinez indicated, a measure’s punitive
nature may also be discerned by weighing such factors as “[w]hether the sanction
involves an affirmative disability or restraint, whether it has historically been
regarded as a punishment, whether it comes into play only on a finding of scienter,
whether its operation will promote the traditional aims of punishment—retribution
and deterrence, whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be connected is
assignable for it, and whether it appears excessive in relation to the alternative
purpose assigned.” (Id. at pp. 168-169, fns. omitted.)
Assessing the sex offender registration requirement in light of these factors,
the Reed majority concluded that registration is punishment. The majority
conceded that “the Legislature may reasonably have intended . . . sex offender
registration [to] serve as a law enforcement tool to facilitate criminal
investigations” (Reed, supra, 33 Cal.3d 914, 922), and that registration of sex
offenders has not historically been viewed as punishment (id. at p. 921), but
concluded that these considerations were not dispositive.
Instead, the Reed majority stressed its view that registration imposes an
affirmative disability or restraint. Registration is punitive in its essential nature,
the majority asserted, because, aside from the lifelong duties and obligations
involved, it produces a stigma—an “ ‘ignominious badge’ ”—that may remain
with the registrant forever, and also exposes the registrant to police compulsion in
the form of “command performance” appearances in lineups. (Reed, supra,
33 Cal.3d 914, 920.)
Moreover, the Reed majority reasoned, “[t]he third, fourth, and fifth factors
enumerated in Mendoza-Martinez are readily satisfied,” at least when registration
11
is imposed for the crime of public lewdness. (Reed, supra, 33 Cal.3d 914, 921-
922.) That offense, the majority observed, requires lewd intent, and a resulting
registration requirement thus comes into play only upon a finding of scienter.
Moreover, said the majority, “the legislative intent was surely to deter recidivism
by facilitating the apprehension of past offenders. [Citation.] And, of course, ‘the
conduct to which [registration] . . . applies is already a crime.’ ” (Id. at p. 922.)
Finally, the Reed majority was unpersuaded that registration was justified,
despite its punitive incidents, by an alternative, nonpunitive purpose. First, the
majority in Reed doubted that registration of sex offenders is, in fact, an effective
law enforcement tool. In any event, the majority concluded, “the fact that a
minimal or ‘rational’ basis may underlie the legislation is outweighed here by the
fact that the penalty of registration is ‘excessive in relation to the alternative
purpose assigned’ to it. [Citation.]” (Reed, supra, 33 Cal.3d 914, 922, italics
added by Reed.)8
Developments since Reed persuade us that this analysis is no longer viable.
We now conclude that a requirement of mere registration by one convicted of a
sex-related crime, despite the inconvenience it imposes, cannot be considered a
form of “punishment” regulated by either federal or state constitutional
proscriptions against cruel and/or unusual punishment.9
8
After Reed, supra, 33 Cal.3d 914, concluded that registration was “cruel or
unusual punishment” for one convicted of public lewd solicitation under section
647(a), the Legislature amended section 290 to delete the registration requirement
for persons convicted of that offense. (Stats. 1985, ch. 929, § 4, p. 2936; id.,
ch. 1474, § 1, p. 5403.)
9
For purposes of this case, we consider only the registration provisions of
the California scheme. As indicated above, though California’s sex offender
registration law currently contains some provisions for public disclosure of
registration information, Alva does not come within these provisions, because his
(Footnote continued on next page.)
12
Courts have had difficulty deciding how to determine when legislation
imposes “punishment” for purposes of the several constitutional provisions to
which that concept is relevant. But, with one exception discussed below, we and
the United States Supreme Court have moved steadily away from the Reed
perspective, both in general and with respect to sex offender registration statutes in
particular. The factors set forth in Mendoza-Martinez, supra, 372 U.S. 144,
remain relevant in a number of these constitutional contexts, but the ways in
which they are applied are distinctly at odds with Reed’s treatment.
Thus, in People v. McVickers (1992) 4 Cal.4th 81 (McVickers), we
considered whether a statute requiring persons convicted of certain sex crimes to
submit to blood tests for AIDS violated the state and federal ex post facto clauses,
as applied to persons who had committed their crimes before the testing
requirement was adopted. At issue was whether the statute had improperly
increased the “punishment” for such crimes after their commission (see Collins v.
Youngblood (1990) 497 U.S. 37, 42) by means of “retrospective legislation with a
punitive effect or purpose.” (McVickers, supra, at p. 85.)
For the proper test of punishment, we looked at the outset not only to
Mendoza-Martinez, supra, 372 U.S. 144, but to the plurality opinion in Trop v.
Dulles (1958) 356 U.S. 86 (Trop). We noted the Trop plurality’s statement that
(Footnote continued from previous page.)
registration requirement is not based on conviction of one of the specific offenses
to which they apply. Hence, though such public-disclosure provisions have
generally been upheld against constitutional challenge as legitimate means of
assisting the public to protect itself against dangerous recidivist sex offenders, we
need not and do not consider how our analysis might be affected if such provisions
applied to this case.
13
“ ‘[i]n deciding whether or not a law is penal, this Court has generally based its
determination upon the purpose of the statute. . . . [A] statute has been declared
nonpenal if it imposes a disability, not to punish, but to accomplish some other
legitimate governmental purpose.’ [Fns. omitted].” (McVickers, supra, 4 Cal.4th
81, 85, quoting Trop, supra, at p. 96 (opn. of Warren, C.J.).) Trop, discussed in
greater detail below, is significant because it is one of the relatively few high court
cases addressing what constitutes punishment for purposes of the Eighth
Amendment’s prohibition of “cruel and unusual punishments.”
Examining these factors, we reasoned that blood testing produces only
slight intrusion, inconvenience, risk, and discomfort, not rising in its nature to the
level of punishment. Further, we observed, the statute’s strictly limited disclosure
provisions were not “punishment” in the form of ostracism, for unless the
defendant offended again, the test results were disclosed only to the defendant, his
attorney, and the Department (for use by the prosecution, if the test results were
positive, to enhance punishment for a future offense). (McVickers, supra,
4 Cal.4th 81, 88.) We stressed that the statute had a legitimate nonpunitive
purpose—preventing the spread of AIDS—and that its provisions were not
excessive in relation to its goal. (Id. at pp. 88-89.)
Thereafter, in Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks), the
United States Supreme Court addressed double jeopardy and ex post facto
challenges to Kansas’s Sexually Violent Predators Act (Kansas Act), which
provided for the involuntary confinement and treatment, beyond their prison
terms, of certain dangerously disordered recidivist sex offenders. Both the ex post
facto and double jeopardy arguments against the Kansas Act stemmed from the
premise that the statute, despite its “civil” label, imposed new “punishment” for
prior crimes.
14
In rejecting the claim of “punishment,” the Hendricks majority addressed
factors similar to those discussed in Mendoza-Martinez, supra, 372 U.S. 144. (See
Hendricks, supra, 521 U.S. 346, 362-364.) In particular, the majority stressed that
all presumptions favored the Kansas Legislature’s facial designation of the
proceedings as “civil,” not “criminal” and punitive. “Although we recognize that
a ‘civil label is not always dispositive,’ [citation],” the majority observed, “we will
reject the legislature’s manifest intent only where a party challenging the statute
provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in
purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” (Id. at
p. 361, quoting United States v. Ward (1980) 448 U.S. 242, 248-249 (Ward); see
also Seling v. Young (2001) 531 U.S. 250, 261.)
In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart), we
adhered closely to Hendricks, supra, 521 U.S. 346, in concluding that California’s
Sexually Violent Predators Act, a statute similar to the Kansas Act, does not
impose punishment for purposes of the state and federal ex post facto clauses.
(Hubbart, supra, at pp. 1170-1179.)
The same year we decided Hubbart, supra, 19 Cal.4th 1138, we directly
addressed whether mandatory sex offender registration, as provided by section
290, constitutes “punishment.” In Castellanos, supra, 21 Cal.4th 785, we rejected
the defendant’s claim that state and federal guaranties against ex post facto
legislation immunized him from registration under a provision of section 290
which became effective only after he committed his offense.10 All but one
10
Defendant Castellanos was convicted of multiple counts of burglary and
receiving stolen property for crimes committed in 1993 and 1994. He burglarized
the homes of teenaged girls whose names he had compiled on a list. He always
stole a pair of the girl’s panties. Often, he carried away photographs of the girls,
and samples of some of the girls’ pubic hairs, stored in plastic bags marked with
(Footnote continued on next page.)
15
member of this court agreed that ex post facto principles were not implicated by
application of the new registration provision to Castellanos’s earlier offense,
because registration was not new or increased “punishment” for that crime.
The lead opinion in Castellanos, supra, 21 Cal.4th 785, first extensively
reviewed the United States Supreme Court’s post-Reed “punishment”
jurisprudence. The opinion noted that the high court’s modern decisions had
analyzed the concept of “punishment” somewhat differently in various
constitutional contexts. In these circumstances, the opinion expressed uncertainty
whether the multifactor test of Mendoza-Martinez, supra, 372 U.S. 144, was
precisely applicable to the ex post facto clauses. (Castellanos, supra, 21 Cal.4th
785, 792-795 & fn. 5 (lead opn. of George, C.J.).) However, the opinion
concluded that “two factors appear important in each case: whether the
Legislature intended the provision to constitute punishment and, if not, whether
the provision is [nonetheless] so punitive in nature or effect that it must be found
to constitute punishment despite the Legislature’s contrary intent.” (Id. at p. 795,
fn. omitted, italics added.)
(Footnote continued from previous page.)
their names, were found at his home. At the time Castellanos committed these
crimes, section 290 did not include burglary and receiving stolen property among
the enumerated crimes subject to the statute’s registration requirements.
Thereafter, but before Castellanos’s trial, section 290 was amended to require
registration, when ordered by the court, upon conviction of “any offense . . . if the
court finds at the time of conviction or sentencing that the person committed the
offense as a result of sexual compulsion or for purposes of sexual gratification.”
(§ 290, subd. (a)(2)(E), as added by Stats. 1994, ch. 867, § 2.7, p. 4390.) The trial
court found that Castellanos’s crimes were sexually related.
16
Moreover, the Castellanos lead opinion noted, we had applied a similar
standard of punishment for ex post facto purposes. Thus, in McVickers, supra,
4 Cal.4th 81, we stressed that the AIDS testing requirement there under review,
though it imposed a burden, “ ‘[had] a legitimate purpose other than
punishment,’ ” and that the burden imposed “ ‘[was] not excessive in relation to
the statute’s stated purpose.’ ” (Castellanos, supra, 21 Cal.4th 785, 796 (lead opn.
of George, C.J.), quoting McVickers, supra, at p. 89.)
Similarly here, the Castellanos lead opinion reasoned, whether the burden
of sex offender registration is punitive depends on its purpose and effect.
(Castellanos, supra, 21 Cal.4th 785, 796 (lead opn. of George, C.J.).) That
purpose, the opinion confirmed, is “ ‘to promote the “ ‘state interest in controlling
crime and preventing recidivism in sex offenders.’ ” [Citation.] As this court
consistently has reiterated: “The purpose of section 290 is to assure that persons
convicted of the crimes enumerated therein shall be readily available for police
surveillance at all times because the Legislature deemed them likely to commit
similar offenses in the future. [Citation.]” [Citations.] . . . [¶] . . . The statute is
thus regulatory in nature, intended to accomplish the government’s objective by
mandating certain affirmative acts.’ ” (Castellanos, supra, at p. 796, quoting
Wright, supra, 15 Cal.4th 521, 527.)
Accordingly, the Castellanos lead opinion determined, “[t]he sex offender
registration requirement serves an important and proper remedial purpose, and it
does not appear that the Legislature intended the . . . requirement to constitute
punishment. Nor is the . . . requirement so punitive in fact that it must be regarded
as punishment, despite the Legislature’s contrary intent. Although registration
imposes a substantial burden on the convicted offender, this burden is no more
onerous than necessary to achieve the purpose of the statute.” (Castellanos, supra,
21 Cal.4th 785, 796, fn. omitted (lead opn. of George, C.J.).) Thus, the opinion
17
concluded, “the . . . sex offender registration requirement imposed by section 290
does not constitute punishment for purposes of ex post facto analysis.” (Ibid.)
The Castellanos lead opinion acknowledged Reed’s conclusion that
mandatory sex offender registration was punitive. However, the opinion noted,
the United States Supreme Court had since “elaborated upon and refined the
criteria to be considered in determining whether a provision should be considered
‘punishment’ for purposes of ex post facto analysis [citation]” (Castellanos, supra,
21 Cal.4th 785, 797 (lead opn. of George, C.J.)), and we had also spoken on the
subject. “Upon reexamination of . . . Reed in light of these more recent cases,” the
opinion concluded, “Reed should be disapproved to the extent that decision can be
interpreted as suggesting that sex offender registration constitutes punishment for
purposes of ex post facto analysis.” (Castellanos, supra, at p. 798.)
In this regard, the Castellanos lead opinion concluded we should
emphasize, more than Reed had done, the regulatory nature of the registration
statute, and—considering the virtually unanimous out-of-state authority sustaining
registration requirements against ex post facto challenges—the fact that
registration was not historically regarded as punishment. Moreover, the opinion
suggested, because Reed involved whether registration was “cruel or unusual
punishment” for a misdemeanor conviction of lewd solicitation, much of Reed’s
analysis focused on evidence, presented in that case, that registration was an
ineffective enforcement tool and an excessive disability, as applied to that
relatively minor crime. Similar considerations are irrelevant to ex post facto
analysis, the Castellanos lead opinion asserted, which is concerned with whether
the disability imposed is excessive in relation to its regulatory purpose.
(Castellanos, supra, 21 Cal.4th 785, 798 (lead opn. of George, C.J.).)
The concurring opinion in Castellanos, supra, 21 Cal.4th 785, reached
similar conclusions by a slightly different route. The concurring opinion reasoned
18
as follows: To decide whether a government sanction is punishment for ex post
facto or double jeopardy purposes, the court must first determine whether the
Legislature intended the sanction to be “civil” or “criminal.” The civil or criminal
nature of the proceedings in which the sanction is imposed is a powerful, but not
dispositive, indicator of the Legislature’s intent. If the legislative intent is civil,
the court must decide whether the sanction’s purpose or effect is nonetheless so
punitive that it must be considered punishment. At this second stage, the factors
set forth in Mendoza-Martinez, supra, 372 U.S. 144, provide useful guidance.
(Castellanos, supra, 21 Cal.4th 785, 801-802 (conc. opn. of Kennard, J.).)
Applying these standards, the Castellanos concurring opinion determined
first that the Legislature had not, in this instance, demonstrated a penal intent by
making the registration sanction part of a criminal proceeding. Instead, she
reasoned, it was simply more efficient to combine the criminal and registration
proceedings, since the latter depended directly on the determinations made in the
former. (Comparing McVickers, supra, 4 Cal.4th 81 [AIDS testing requirement,
imposed as a consequence of a criminal conviction, was not punishment limited by
ex post facto clause].) (Castellanos, supra, 21 Cal.4th 785, 803 (conc. opn. of
Kennard, J.).)
Moreover, the Castellanos concurring opinion concluded, registration is
not, on balance, so punitive in nature as to constitute punishment. She noted that
although the burdens of registration have obvious deterrent purposes and effects—
a characteristic of punishment—we have also identified a nonpunitive purpose of
surveillance which assists police to detect and ferret out crime after it occurs.
(Citing Wright, supra, 15 Cal.4th 521, 527.) Registration’s punitive aspects, the
opinion surmised, are not so overwhelming as to overcome its regulatory and
nonpunitive ends. Alluding to Hendricks, supra, 521 U.S. 346, the opinion
trenchantly observed, “It is hard to imagine how requiring a sex offender to file an
19
address report could be punishment when physically confining the same offender
beyond the end of his criminal sentence is not.” (Castellanos, supra, 21 Cal.4th
785, 804 (conc. opn. of Kennard, J.).)
Turning to the Mendoza-Martinez factors, the Castellanos concurring
opinion noted that two of these factors supported a finding of punishment—
“registration comes into play only upon a finding of scienter, and the behavior to
which it applies is already a crime.” (Castellanos, supra, 21 Cal.4th 785, 805
(conc. opn. of Kennard, J.).) But these considerations were outweighed, the
opinion pointed out, by those supporting a nonpunitive determination: registration
imposed no affirmative disability or restraint (because it imposed no restriction on
personal liberty); had not historically been viewed as punishment (at least aside
from the shaming effect of public disclosure, not applicable to Castellanos’s case);
served legitimate nonpunitive ends; and did not appear excessive in relation to its
nonpunitive purpose. (Id. at p. 804.)
Thus, the Castellanos concurring opinion stressed, “I disagree with . . .
Reed[ ][, supra, 33 Cal.3d 914] that under the Mendoza-Martinez factors sex
offender registration is punishment.” (Castellanos, supra, 21 Cal.4th 785, 805
(conc. opn. of Kennard, J.).) Nonetheless, citing Austin, supra, 509 U.S. 602, the
opinion reserved the issue whether registration might be punishment under the
Eighth Amendment and its California constitutional equivalent, though not
punishment for ex post facto purposes. “Thus,” the opinion concluded, its analysis
“[did] not call Reed’s holding into question.” (Ibid., fn. omitted.)
Last term, the United States Supreme Court confirmed beyond doubt that
laws requiring the registration of convicted sex offenders—including now-
common provisions for public dissemination of information about the identity and
whereabouts of dangerous offenders—do not impose punishment for purposes of
the federal ex post facto clause. (Smith, supra, 538 U.S. 84.) In reaching that
20
conclusion, the high court majority relied heavily on the multifactor test set forth
in Mendoza-Martinez, supra, 372 U.S. 144.
At issue in Smith was Alaska’s version of “Megan’s Law,” so named in
memory of a seven-year-old New Jersey girl “who was sexually assaulted and
murdered in 1994 by a neighbor who, unknown to the victim’s family, had prior
convictions for sex offenses against children.” (Smith, supra, 538 U.S. 84, 89.)
As the Supreme Court observed, “[this] crime gave impetus to laws for mandatory
registration of sex offenders and corresponding community notification. In 1994,
Congress passed the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act . . . , which conditions certain federal law
enforcement funding on the States’ adoption of sex offender registration laws and
sets minimum standards for state programs. By 1996, every State, the District of
Columbia, and the Federal Government had enacted some variation of Megan’s
Law.” (Smith, supra, at pp. 89-90.)
The Alaska statute includes both a registration requirement and a public
notification provision. Both apply to past convictions. (Smith, supra, 538 U.S.
84, 90.) The statute requires “ ‘any sex offender or child kidnapper . . . physically
present in the state’ ” to register with state or local law enforcement authorities.
(Ibid.) One convicted of a single, nonaggravated sex offense must register
annually, and upon any change of address, for 15 years. For one convicted of
multiple offenses, or an aggravated offense, these obligations are lifelong.
Registration data is sent to the Alaska Department of Public Safety. That
department is to make public substantial identifying information about registrants,
including their names, aliases, addresses, photographs, physical descriptions,
descriptions and license and identification numbers of vehicles, birth dates, crimes
for which convicted, places and times of conviction, and terms and conditions of
confinement. Alaska posts this information on the Internet.
21
Two men who had suffered qualifying sex offense convictions before the
Alaska law was enacted filed a federal suit to void application of the law against
them. They claimed that the Alaska statute’s registration requirement, and its
provision for invasive public disclosure of information about their identities,
descriptions, whereabouts, and crimes, imposed new punishment for their prior
crimes in violation of the ex post facto clause. The district court and the court of
appeals agreed that the Alaska Legislature intended the statute to be nonpunitive.
However, unlike the district court, the court of appeals found the law punitive in
effect despite the legislative intent. On that basis, the court of appeals held that
the statute violates the ex post facto clause as applied to prior crimes.
As in earlier decisions, the United States Supreme Court stated a two-
pronged analysis: “If the intention of the legislature was to impose punishment,
that ends the inquiry. If, however, the intention was to enact a regulatory scheme
that is civil and nonpunitive, we must further examine whether the statutory
scheme is ‘ “so punitive either in purpose or effect as to negate [the State’s]
intention” to deem it “civil.” ’ [Citations.] Because we ‘ordinarily defer to the
legislature’s stated intent,’ [citation], ‘ “only the clearest proof” will suffice to
override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty,’ [citations].” (Smith, supra, 538 U.S. 84, 92.)
As to legislative intent, the Smith majority noted the following:
First, Alaska’s legislature amply indicated that it intended a civil scheme
for public protection. The legislature found that “ ‘sex offenders pose a high risk
of reoffending,’ ” that “ ‘protecting the public from sex offenders’ ” was the
statute’s primary objective, and that “ ‘release of certain information about sex
offenders to public agencies and the general public will assist in’ ” the goal of
public protection. (Smith, supra, 538 U.S. 84, 93.) “[A]n imposition of restrictive
measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive
22
governmental objective and has been historically so regarded.’ ” (Ibid., quoting
Hendricks, supra, 521 U.S. 346, 363.)
Second, even though Alaska’s Constitution lists public protection as an
objective of criminal administration, when a legislative restriction is an incident of
the state’s power to protect public health and safety, it will generally be considered
as exercising that civil and remedial power, and not as adding punishment.
(Smith, supra, 538 U.S. 84, 93-94, citing Flemming v. Nestor (1960) 363 U.S. 603
[termination of benefits to deported aliens] and United States v. One Assortment of
89 Firearms (1984) 465 U.S. 354 [forfeiture of unlicensed firearms].)
Third, it is relevant, but not dispositive, that the registration provisions of
Alaska’s law are codified in its criminal procedure code. (Cf. Hendricks, supra,
521 U.S. 346, 361 [civil intent of law for involuntary confinement of dangerously
disordered sex offenders is evidenced by statute’s placement in civil code].) Many
provisions of Alaska’s criminal code, though perhaps related to criminal
administration, are not themselves punitive. “The partial codification of the Act in
the State’s criminal procedure code is not sufficient to support a conclusion that
the legislative intent was punitive.” (Smith, supra, 538 U.S. 84, 95.)
Fourth, a punitive intent is not evidenced by the procedural requirement
that plea advisements include notification of registration requirements. “When a
State sets up a regulatory scheme, it is logical to provide those persons subject to it
with clear and unambiguous notice of the requirements and the penalties for
noncompliance.” (Smith, supra, 538 U.S. 84, 96.) Here, notice is particularly
important, because noncompliance entails criminal penalties.
Fifth, the Alaska statute mandates no procedures, but vests authority in the
state’s department of public safety to promulgate implementing regulations. The
statute itself does not require the procedures adopted to include criminal
safeguards. “That leads us to infer that the legislature envisioned the Act’s
23
implementation to be civil and administrative. By contemplating ‘distinctly civil
procedures,’ the legislature ‘indicate[d] clearly that it intended a civil, not a
criminal sanction.’ ” (Smith, supra, 538 U.S. 84, 96, quoting United States v.
Ursery (1996) 518 U.S. 267, 289 (Ursery).)
Having concluded, for all these reasons, “that the intent of the Alaska
legislature was to create a civil, nonpunitive regime” (Smith, supra, 538 U.S. 84,
96), the majority next considered whether the Alaska statute was nonetheless
punitive in effect. The majority observed that “[i]n analyzing the effects of the
Act we refer to the seven factors noted in [Mendoza-Martinez, supra, 372 U.S.
144, 168-169] as a useful framework. These factors, which migrated into our ex
post facto case law from double jeopardy jurisprudence, have their earlier origins
in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder
and the Ex Post Facto Clauses. [Citation.] . . . [T]he Mendoza-Martinez factors
are designed to apply in various constitutional contexts . . . .” (Smith, supra, at
p. 97, italics added.)
“The factors most relevant to our analysis,” the majority observed, “are
whether, in its necessary operation, the regulatory scheme [ ] has been regarded in
our history and traditions as a punishment; imposes an affirmative disability or
restraint; promotes the traditional aims of punishment; has a rational connection to
a nonpunitive purpose; or is excessive with respect to this purpose.” (Smith,
supra, 538 U.S. 84, 97.)
Focusing on the Alaska statute’s community notification provisions, the
court first rejected the notion that they resemble historical “shaming” punishments
such as public labeling or branding and banishment. As the court noted, the
Alaska statute, unlike these early punishments, does not subject the offender to
direct ostracism, humiliation, or ridicule. Instead, it simply provides for “the
dissemination of accurate information about a criminal record, most of which is
24
already public. Our system does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as punishment.” (Smith, supra,
538 U.S. 84, 98.) Any resulting stigma, the court explained, is incidental to the
statute’s purpose, not “an integral part of the objective of the regulatory scheme.”
(Id. at p. 99.)
The majority next found that Alaska’s statute does not subject registrants to
any affirmative disability or restraint. The majority reasoned: The registration
requirements impose no physical restraint like imprisonment, or any other direct
restriction on the offender’s activities. The reporting obligations are less onerous
than occupational disbarment, which the court has held nonpunitive. Whatever
“lasting and painful impact” the public availability of registration information may
have on an offender’s practical ability to obtain employment and housing, “these
consequences flow not from the Act’s registration and dissemination provisions,
but from the fact of conviction, already a matter of public record. The State makes
the facts underlying the offenses and the resulting convictions accessible so
members of the public can take the precautions they deem necessary before
dealing with the registrant.” (Smith, supra, 538 U.S. 84, 101.)11
11 Nor, the majority explained, are the Alaska statute’s requirements
sufficiently like probation or supervised release to find an affirmative disability or
restraint. The majority explained: Probation and supervised release entail
mandatory restrictions on behavior, violation of which can lead to revocation of
the conditional liberty. Those under such supervision may require the authorities’
permission to make significant life changes. By contrast, registrants under the
Alaska statute are free to work, live, and change residences as they choose,
without supervision. They must inform the authorities when they take certain
actions, but they need not seek permission to do so. Violation of the duty to
register may result in criminal prosecution, but this is in a proceeding separate
from the individual’s original offense. (Smith, supra, 538 U.S. 84, 101-102.)
25
The majority further concluded that any retributive or deterrent effect the
Alaska statute might have does not render it punitive. A contrary theory, the
majority observed, “proves too much. Any number of governmental programs
might deter crime without imposing punishment. ‘To hold that the mere presence
of a deterrent purpose renders such sanctions “criminal” . . . would severely
undermine the Government’s ability to engage in effective regulation.’
[Citations.]” (Smith, supra, 538 U.S. 84, 102.) Nor, the majority insisted, are the
registration obligations punishment because their duration varies depending on
whether the underlying sex offenses are “aggravated” within the statutory
definition. The majority noted that “[t]he broad categories . . . and the
corresponding length of the reporting requirement, are reasonably related to the
danger of recidivism, and this is consistent with the regulatory objective.” (Ibid.)
“The Act’s rational connection to a nonpunitive purpose,” the majority
explained, “is a ‘[m]ost significant’ factor in our determination that the statute’s
effects are not punitive. [Citation.]” (Smith, supra, 538 U.S. 84, 102.) The
offenders conceded that the Alaska statute’s “ ‘purpose of public safety, which is
advanced by alerting the public to the risk of sex offenders in their
communit[y],’ ” is legitimate, rational, and valid, but they argued that the law
must be “ ‘narrowly drawn to accomplish the stated purpose.’ ” (Id. at p. 103).
Not so, the majority responded; “[a] statute is not deemed punitive simply because
it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The
imprecision respondents rely upon does not suggest that the Act’s nonpunitive
purpose is a ‘sham or mere pretext.’ [Citation.]” (Id. at p. 103.)
The majority rejected the offenders’ contention that the Alaska statute is
excessive in relation to its nonpunitive purpose because it (1) applies to all
convicted sex offenders, regardless of their future dangerousness, (2) places no
limits on the number of persons who have access to the registration information,
26
and (3) imposes a registration requirement of excessive duration. Noting that the
risk of recidivism posed by sex offenders generally is “ ‘frightening and high’ ”
(Smith, supra, 538 U.S. 84, 103, quoting McKune v. Lile (2002) 536 U.S. 24, 34),
the majority stressed that “Alaska could conclude that a conviction for a sex
offense provides evidence of substantial risk of recidivism. The legislature’s
findings are consistent with grave concerns over the high rate of recidivism among
convicted sex offenders and their dangerousness as a class.” (Smith, supra, at
p. 103.)
Generally, the majority noted, a legislature “ ‘has power in cases of this
kind to make a rule of universal application,’ ” “without any corresponding risk
assessment.” (Smith, supra, 538 U.S. 84, 104.) The majority distinguished the
involuntary confinement scheme at issue in Hendricks, supra, 521 U.S. 346,
noting that the Alaska statute imposes “the more minor condition of registration.
In the context of the regulatory scheme the State can dispense with individual
predictions of future dangerousness and allow the public to assess the risk on the
basis of accurate, nonprivate information about the registrants’ convictions
without violating . . . the Ex Post Facto Clause.” (Smith, supra, at p. 104.)
The duration of the registration requirement is not excessive, the majority
concluded, considering that “[e]mpirical research on child molesters, for instance,
has shown that, ‘[c]ontrary to conventional wisdom, most reoffenses do not occur
within the first several years after release,’ but may occur ‘as late as 20 years
following release.’ U.S. Dept. of Justice, National Institute of Justice, R. Prentky,
R. Knight, and A. Lee, Child Molestation: Research Issues 14 (1997).” (Smith,
supra, 538 U.S. 84, 104.) Moreover, the majority noted, the public notification
system, though widely accessible, is passive; registration information is obtained
by contacting a Web site, which warns that criminal acts against a registrant are
subject to prosecution. (Id. at p. 105.)
27
The “excessiveness” inquiry, the majority explained, “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. The Act meets this
standard.” (Smith, supra, 538 U.S. 84, 105.)
Finally, the majority found the two remaining Mendoza-Martinez factors—
whether the regulation comes into play only upon a finding of scienter, and
whether the behavior to which it applies is itself a crime—to be of little
significance. The regulatory scheme, the court observed, is necessarily founded
on past conduct that was a crime, recidivism being the statutory concern. On the
other hand, “[t]he obligations the statute imposes are the responsibility of
registration, a duty not predicated upon some present or repeated violation.”
(Smith, supra, 538 U.S. 84, 105.)
In sum, the majority concluded, “respondents cannot show, much less by
the clearest proof, that the effects of the law negate Alaska’s intention to establish
a civil regulatory scheme. The Act is nonpunitive, and its retroactive application
does not violate the Ex Post Facto Clause.” (Smith, supra, 538 U.S. 84, 105-106.)
Beyond doubt, section 290 is equally nonpunitive by these criteria. Our
decisions, described above, have confirmed that the purpose and intent of
registration are regulatory, as a means of assisting law enforcement in dealing with
the serious problem of recidivist sex offenders.12 Moreover, registration is not
12
The Legislature confirmed this purpose by making extensive findings when
it adopted public-notification provisions in 1996. Section 1 of Statutes 1996,
chapter 908, declares, inter alia, that “[s]ex offenders pose a high risk of engaging
in further offenses . . . , and protection of the public from these offenders is a
paramount public interest” (id., § 1, subd. (a)); that there is a “compelling and
necessary public interest” in providing public information about convicted sex
(Footnote continued on next page.)
28
punitive in effect notwithstanding the legislative intent. Registration has not
historically been viewed as punishment, imposes no direct disability or restraint
beyond the inconvenience of compliance, and has a legitimate nonpenal objective.
Though registration may have incidental deterrent or retributive effects, and
applies to conduct which is already a crime, these features are not sufficient to
outweigh the statute’s regulatory nature. Nor is it dispositive that the registration
statute appears in the Penal Code, and that the obligation to register is imposed as
part of a criminal proceeding.
Moreover, section 290’s provisions are not excessive, and therefore
punitive, insofar as they (1) apply mandatory registration to a wide range of sex-
related crimes, without closely assessing the danger posed by each individual
offense or offender, and (2) make the registration requirement lifelong. Given the
general danger of recidivism presented by those convicted of criminal sexual
misconduct, and the relatively minor burden registration represents, the
Legislature may adopt a rule of general application for this class of offenders, and
may guard against the demonstrated long-term risk of reoffense by imposing a
permanent obligation on persons convicted of such crimes. (See Smith, supra, 538
(Footnote continued from previous page.)
offenders in order “to allow members of the public to adequately protect
themselves and their children from these persons” (id., § 1, subd. (b)); that “[t]he
registration of sex offenders, [and] the public release of specified information
about certain . . . offenders . . . will further the governmental interests of public
safety and public scrutiny of the criminal and mental health systems that deal with
these offenders” (id., § 1, subd. (e)); and that the legislative policy of continued
registration, and limited public disclosure, is necessary “[t]o protect the safety and
general welfare of the people of this state” as a means of “assuring public
protection and shall not be construed as punitive” (id., § 1, subd. (f)).
29
U.S. 84, 104.) The means chosen to achieve the regulatory goal are therefore
reasonable. (Id. at p. 105.)
Thus, by every standard set forth in such cases as Mendoza-Martinez,
McVickers, Hendricks, Castellanos, and Smith, the registration requirement
imposed by section 290 is not punishment, but a legitimate, nonpunitive
regulatory measure. Moreover, it is clear beyond argument that Reed, supra,
33 Cal.3d 914, misapplied the Mendoza-Martinez factors to conclude otherwise.
The only question is whether sex offender registration is nonetheless
“punishment” under some “broader” test that applies to the cruel and/or unusual
punishment clauses in particular. We conclude that the answer is “no.”
Few decisions of this court, or of the United States Supreme Court, have
discussed what constitutes punishment in the specific context of the Eighth
Amendment and its California counterpart. In Fong Yue Ting v. United States
(1893) 149 U.S. 698, the high court concluded that the deportation of Chinese
aliens who violated statutory requirements for remaining in the United States was
not “punishment for crime” for purposes of the due process, trial by jury, search
and seizure, and cruel and unusual punishments clauses of the federal
Constitution. Instead, the court held, such action was simply an exercise of the
government’s sovereign power to determine and enforce the conditions under
which noncitizens might lawfully be present in this country. (Id. at p. 730.)
In Trop, supra, 356 U.S. 86, the court struck down, on divided grounds, a
1940 federal statute providing that a member of the armed forces, convicted by a
military tribunal of wartime desertion, would automatically lose citizenship unless
restored, at the military’s discretion, to active wartime duty. A four-member
plurality, led by Chief Justice Warren, concluded that denationalization for the
crime of desertion was a cruel and unusual punishment prohibited by the Eighth
Amendment.
30
To answer the preliminary question whether the sanction was “punishment”
at all, the Trop plurality equated the problem with that presented under the bill of
attainder and ex post facto clauses, “because these provisions apply only to
statutes imposing penalties.” (Trop, supra, 356 U.S. 86, 96 (opn. of Warren,
C.J.).) “In deciding whether or not a law is penal,” the plurality opinion observed,
“this Court has generally based its determination upon the purpose of the statute.
If the statute imposes a disability for the purpose of punishment—that is, to
reprimand the wrongdoer, to deter others, etc.—it has been considered penal. But
a statute has been considered nonpenal if it imposes a disability, not to punish, but
to accomplish some other legitimate governmental purpose. The Court has
recognized that any statute decreeing some adversity as a consequence of certain
conduct may have both a penal and a nonpenal effect. The controlling nature of
such statutes normally depends on the evident purpose of the legislature.” (Ibid.,
italics added, fns. omitted.)
For two reasons, the Trop plurality concluded, the 1940 denationalization
law imposed punishment. First, there were strong indications of punitive intent.
Though a congressional committee considering the 1940 statute had reported that
it was “ ‘technically . . . not a penal law,’ ” it was derived from similar provisions,
dating to the Civil War, that the committee admitted were “ ‘distinctly penal in
character.’ ” (Trop, supra, 356 U.S. 86, 94 (opn. of Warren, C.J.).) Second, loss
of citizenship, imposed as a consequence of crime, was clearly punitive in nature.
Divestment of citizenship for wartime desertion was not like deportation of aliens
engaged in espionage, or denaturalization of persons who had falsified their
citizenship applications. These, despite their “severe penal effect,” had been
upheld as nonpunitive exercises of the sovereign power to set conditions for the
presence, and the naturalization, of noncitizens. (Id. at p. 98.) By contrast, “[t]he
purpose of taking away citizenship from a convicted deserter is simply to punish
31
him. There is no other legitimate purpose that the statute could serve.” (Id. at
p. 97, italics added.)
Justice Brennan, who supplied the fifth vote against the statute, reasoned
simply that expatriation for military desertion is beyond any enumerated power of
Congress, such as the foreign affairs or war power, because it has no logical nexus
to the exercise of any such powers. (Trop, supra, 356 U.S. 86, 105-114 (conc.
opn. of Brennan, J.).) Justice Frankfurter disagreed in result with both the
plurality and Justice Brennan. In Justice Frankfurter’s view, loss of nationality
was a logical consequence of failing to perform wartime military duty, a basic
obligation of citizenship. Congress could properly so provide, Justice Frankfurter
concluded, as a nonpenal incident of its power to regulate military affairs. “Since
there are legislative ends within the scope of Congress’ war power that are wholly
consistent with a ‘non-penal’ purpose to regulate the military forces, and since
there is nothing on the face of [the 1940] legislation or its history to indicate that
Congress had a contrary purpose, there is no warrant for this Court’s labeling the
disability imposed by [the statute] as a ‘punishment.’ ” (Trop, supra, at p. 125
(dis. opn. of Frankfurter, J.).)13
In Uphaus v. Wyman (1959) 360 U.S. 72, the court upheld a judgment of
contempt that ordered the appellant jailed until he complied with the informational
demands of a congressional investigating committee. Rejecting a cruel and
unusual punishment challenge among others (see id. at p. 73), the court reasoned
that such coercion “ ‘is essentially a civil remedy designed for the benefit of other
13
The court subsequently held that Congress has no express or implied power
to strip a person of citizenship under any circumstances. (Afroyim v. Rusk (1967)
387 U.S. 253, overruling Perez v. Brownell (1958) 356 U.S. 44 [upholding law
providing for denationalization as consequence of voting in foreign election].)
32
parties and has quite properly been exercised for centuries to secure compliance
with judicial decrees.’ ” (Id. at p. 81, quoting Green v. United States (1958)
356 U.S. 165, 197 (dis. opn. of Black, J.).) More recently still, the court found
that the Eighth Amendment does not protect against the paddling of public school
students, because such discipline does not constitute punishment for persons
convicted of crimes. (Ingraham v. Wright (1977) 430 U.S. 651, 664.)
Despite variations in wording, and occasional disagreements in result, these
cases indicated a loose consensus about the standards for determining what is
punishment for purposes of the Eighth Amendment. To qualify, the burden or
disability must be imposed as a consequence of a law violation, and must either be
intended as punishment, or have no other legitimate aim. Measures imposed
within the legislative power, that were intended as civil and nonpunitive and had a
legitimate regulatory purpose, were not deemed punishment for this purpose, even
if they had substantial—even harsh and severe—penal consequences. By these
standards, for the reasons set forth above, the mandatory registration of convicted
sex offenders is not punishment.
Concern that the high court has since adopted a more stringent definition of
punishment for Eighth Amendment purposes stems essentially from the high
court’s 1993 decision in Austin, supra, 509 U.S. 602. There, after a South Dakota
court convicted petitioner Austin of cocaine possession with intent to distribute,
the United States filed an in rem action to seize Austin’s mobile home and auto
body shop involved in the drug transaction. The government’s action was
premised on federal statutes which called for the forfeiture of all vehicles and real
property used in the manufacture, sale, distribution, or concealment of illegal
drugs, but which excepted any interest so used without the owner’s knowledge
and consent. The lower courts rejected Austin’s claim of an Eighth Amendment
violation. The United States Supreme Court reversed.
33
The government argued that the Eighth Amendment in general, and its
excessive fines clause in particular, applied only to criminal, not civil, penalties.
The court rejected this contention. It reasoned that, unlike some other
constitutional guarantees, such as the self-incrimination, speedy trial,
confrontation, and right-to-counsel provisions, that apply specifically to criminal
cases, the Eighth Amendment contains no such limitation, and was intended to
limit the government’s power to punish generally. (Austin, supra, 509 U.S. 602,
607-610.)
For this reason, the court suggested, the government was also wrong to
assert that “the Eighth Amendment cannot apply to a civil proceeding unless that
proceeding is so punitive that it must be considered criminal under [Mendoza-
Martinez, supra, 372 U.S. 144] and [Ward, supra, 448 U.S. 242] [holding that a
proceeding to assess a civil penalty against a water polluter was not “so criminal in
its nature” as to invoke the protections of the Fifth Amendment’s privilege against
self-incrimination].” (Austin, supra, 509 U.S. 602, 607.) “The question in those
cases,” the court declared, “was whether a nominally civil penalty should be
reclassified as criminal and the safeguards that attend a criminal prosecution
should be required.” (Id. at p. 610, fn. 6.)
When deciding if a sanction is punishment, whether civil or criminal, the
court noted, “[w]e need not exclude the possibility that a forfeiture serves remedial
purposes to conclude that it is subject to the limitations of the Excessive Fines
Clause. We, however, must determine that it can only be explained as serving in
part to punish. . . . ‘[A] civil sanction that cannot fairly be said solely to serve a
remedial purpose, but rather can only be explained as also serving either
retributive or deterrent purposes, is punishment, as we have come to understand
the term.’ [Citation.]” (Austin, supra, 509 U.S. 602, 610, quoting United States v.
Halper (1989) 490 U.S. 435, 448 (Halper), italics added [holding that per-
34
violation “civil penalty” far in excess of actual damage was “punishment” for
purposes of double jeopardy clause].)
Applying this test, the court first determined that, prior to ratification of the
Eighth Amendment, “forfeiture was understood at least in part as punishment.”
(Austin, supra, 509 U.S. 602, 610-611; see also id. at pp. 611-618.) Moreover, the
court explained, statutes and case law since the Republic’s earliest days had
recognized that forfeiture of property, whether imposed in a criminal, civil, or in
rem proceeding, broadly punishes the owner for some form of culpability, willful
or negligent, in its use or management. (Id. at pp. 613-619.)
Next, the court examined the statutes directly at issue, 21 U.S. Code
sections 881(a)(4) and (a)(7), to determine whether “forfeitures under [those
statutes] are properly considered punishment today.” (Austin, supra, 509 U.S.
602, 619.) “[N]othing in these provisions or their legislative history,” the court
concluded, “contradict[s] the historical understanding of forfeiture as
punishment.” (Ibid.) Congress had tied the forfeiture directly to the commission
of drug offenses (id. at p. 620), and had emphasized culpability by inserting “an
‘innocent owner’ defense” unavailable at common law (id. at p. 619). The
legislative history further indicated a punitive intent; relevant congressional
reports argued that traditional criminal sanctions were “ ‘inadequate to deter or
punish the enormously profitable trade in dangerous drugs’ ” and that forfeiture of
real property used in such offenses would be a “ ‘powerful deterrent.’ ” (Id. at
p. 620.)
The government argued that the forfeiture provisions were “remedial” in
two respects—they protected the community by removing the “instruments” of the
drug trade, and they compensated the government for the law enforcement and
societal costs of this trade. Neither theory, the court responded, withstood
scrutiny. While the removal of contraband itself might be considered remedial,
35
this concept could not be stretched to the seizure of otherwise legal property as a
mere consequence of its use for illegal purposes. And given the widely varying
values of the property confiscated under these statutes, such forfeiture “ ‘[is] a
penalty that ha[s] absolutely no correlation to any damages sustained by society or
to the cost of enforcing the law.’ [Citation.]” (Austin, supra, 509 U.S. 602, 621.)
In any event, the court declared, “even assuming that [21 U.S. Code
sections] 881(a)(4) and (a)(7) serve some remedial purpose, the Government’s
argument must fail. ‘[A] civil sanction that cannot fairly be said solely to serve a
remedial purpose, but rather can only be explained as also serving either
retributive or deterrent purposes, is punishment, as we have come to understand
the term.’ [Citation.]” (Austin, supra, 509 U.S. 602, 621, italics added by Austin.)
Given the historical understanding of forfeiture as punishment, the statutes’ focus
on the culpability of the property’s owner, and the evidence that Congress
intended the forfeiture provisions to deter and punish, “we cannot conclude that
forfeiture under [sections] 881(a)(4) and (a)(7) serves solely a remedial purpose.
We therefore conclude that forfeiture under these provisions constitutes ‘payment
to a sovereign as punishment for some offense,’ [citation], and, as such, is subject
to the limitations of the Eighth Amendment’s Excessive Fines Clause.” (Austin,
supra, at p. 622, fn. omitted.) The court reversed and remanded for a
determination whether the penalty was unconstitutionally “excessive.” (Id. at
pp. 622-623.)
The court applied similar reasoning in a later forfeiture case, United
States v. Bajakajian (1998) 524 U.S. 321 (Bajakajian). There, a federal statute
provided that one must report the transportation of more than $10,000 in currency
out of the United States. One convicted of willfully violating the reporting
requirement faced forfeiture of all currency involved in the offense. Airport
customs officials, alerted by currency-sniffing dogs, found some $230,000 in cash
36
in the luggage of Bajakajian and his family, who were boarding a flight to Italy, en
route to Cyprus. When approached and advised of the reporting requirement,
Bajakajian said the family was carrying only $15,000 in cash. Further searches of
the family’s effects produced an additional $127,000 in bills, for a total of
approximately $357,000.
Count 1 of the resulting indictment charged Bajakajian with a “willful[ ]”
reporting violation; count 2 charged a material misstatement to a customs official;
and count 3 sought forfeiture of the unreported cash. Bajakajian pled guilty to
count 1, and count 2 was dismissed. After a trial on count 3, the court found that
Bajakajian, who had grown up in Syria’s Armenian community, was carrying the
currency to repay a lawful debt, and had failed to report the cash because of a
culturally based distrust of government. Nonetheless, pursuant to the statute, the
court ordered forfeiture of the entire $357,000 “involved” in the reporting offense.
Addressing Bajakajian’s Eighth Amendment objection, a five-justice
majority had “little trouble” (Bajakajian, supra, 524 U.S. 321, 328) concluding
that the forfeiture was punishment, i.e., a fine governed by the excessive fines
clause. The majority reasoned as follows: The federal statute, 18 U.S. Code
section 982(a)(1), “direct[ed] a court to order forfeiture as an additional sanction
when ‘imposing sentence on a person convicted of’ a willful [reporting]
violation.” (Bajakajian, supra, at p. 328.) The forfeiture was thus imposed at the
culmination of a criminal proceeding, upon conviction of the underlying felony; it
could not be imposed on an “innocent owner of unreported currency.” Hence, this
forfeiture statute resembled those at issue in Austin, supra, 509 U.S. 602, which
“ ‘expressly provide[d] an “innocent owner” defense’ and thus ‘look[ed] . . . like
punishment.’ ” (Bajakajian, supra, at p. 328, quoting Austin, supra, at p. 619.)
Furthermore, the statute prescribed a form of in personam criminal forfeiture,
against the offending owner directly, that has traditionally been viewed as
37
punitive. (Bajakajian, supra, at pp. 329-332.) Contrary to the government’s
arguments, the forfeiture of all currency, otherwise legally possessed and
transported, that was involved in a mere reporting violation could not be found
nonpunitive on grounds that it confiscated the “instrumentalities” of crime and
compensated the government for law enforcement costs. The government
acknowledged the deterrent purpose of the sanction and admitted it had a penal
component. Under these circumstances, even if the forfeiture also served some
remedial purpose, “the forfeiture would still be punitive in part. (The Government
concedes as much.) This is sufficient to bring the forfeiture within the purview of
the Excessive Fines Clause. [Citation.]” (Id. at p. 329, fn. 4.)14
We assume, for purposes of this opinion, that the test of “punishment” set
forth in Austin, supra, 509 U.S. 602, and Bajakajian, supra, 524 U.S. 321, was
intended to apply not only to fines and forfeitures, as viewed under the excessive
fines clause, but in other Eighth Amendment contexts as well. We also assume
those decisions contemplated a test under which some measures might be
considered punitive for Eighth Amendment purposes, even if not so under other
constitutional provisions, such as the ex post facto and double jeopardy clauses.
Nonetheless, Austin and Bajakajian do not alter our determination that sex
offender registration is not punishment for purposes of the Eighth Amendment.
14
Proceeding to the question whether the forfeiture at issue was an
“excessive” fine, the majority answered in the affirmative. The majority
concluded that forfeiture of the full $357,000, otherwise legally possessed and
transported, for a reporting violation was grossly disproportionate to the gravity of
Bajakajian’s crime, viewed in terms of its moral culpability and the actual harm
caused. Nor, the majority reiterated, could forfeiture of the entire amount be
justified on remedial grounds. (Bajakajian, supra, 524 U.S. 321, 334-344.)
38
Austin, supra, 509 U.S. 602, and Bajakajian, supra, 524 U.S. 321, do not
say that every measure, however legitimately remedial in purpose and design, is
nonetheless “punishment” subject to scrutiny under the Eighth Amendment if it
has any deterrent or retributive effect. On the contrary, Austin was at pains to
explain that a measure will be deemed punishment in this context to the extent it
can only be explained as serving, at least in part, a punitive purpose. (Austin,
supra, at p. 621; see also Bajakajian, supra, at p. 329, fn. 4; cf. Halper, supra,
490 U.S. 435, 448.) In other words, a sanction designed and intended only to
serve legitimate nonpenal objectives is not punishment under the Eighth
Amendment simply because it may burden, inconvenience, restrict, or deter in
fact. Were it otherwise, large numbers of regulatory measures—including those
consistently upheld against other constitutional claims of punishment—would be
subject to close examination under the Eighth Amendment.
We thus agree with the analysis of the New Jersey Supreme Court, which,
in a post-Austin decision, upheld that state’s Megan’s Law against an Eighth
Amendment attack. The New Jersey court explained, “Our review of the law
leads to the following conclusions: a statute that can fairly be characterized as
remedial, both in its purpose and implementing provisions, does not constitute
punishment [for the sole reason that] its remedial provisions have some inevitable
deterrent impact, and even though it may indirectly and adversely affect,
potentially severely, some of those subject to its provisions. Such a law does not
become punitive simply because its impact, in part, may be punitive unless the
only explanation for that impact is a punitive purpose: an intent to punish.”
(Doe v. Poritz (N.J. 1995) 662 A.2d 367, 388.)
To determine that the forfeiture provisions at issue in Austin, supra,
509 U.S. 602, and Bajakajian, supra, 524 U.S. 321, could only be explained, in
part, as serving a punitive purpose, the court in both cases stressed that such
39
exactions were traditionally viewed as punishment. The court also noted that the
forfeitures were not tailored to legitimate nonpunitive goals, and that the evidence
indicated a legislative intent, at least in part, to deter and punish. (Bajakajian,
supra, at pp. 329-332; Austin, supra, at pp. 610-620.)
By contrast, as indicated above, the high court has since confirmed that sex
offender registration does not resemble historical forms of punishment. Recently
examining the Alaska registration statute, the court found it was intended and
designed solely to serve nonpunitive goals of public safety. (See discussion, ante.)
We, in turn, have consistently emphasized that the acts mandated by California’s
registration law are intended to assist law enforcement to maintain surveillance of
recidivist sex offenders, and have no purpose to punish for past misconduct. (See
discussion, ante.) The Legislature itself has now expressly declared that the
registration provisions are necessary for public safety (Stats. 1996, ch. 908, § 1,
subds. (e), (f)) and “shall not be construed as punitive” (id., § 1, subd. (f)).
We realize occasional statements, in both our jurisprudence and that of the
high court, can be read to state that sex offender registration and notification
statutes have not only a deterrent effect, but a deterrent purpose.15 Despite this,
we are not persuaded that California’s provision for confidential registration of
15
See, e.g., Smith, supra, 538 U.S. 84, 102 [state conceded Alaska
registration/notification statute “might deter future crimes,” but mere presence of
“deterrent purpose” does not render measure “criminal” for ex post facto
purposes]; Castellanos, supra, 21 Cal.4th 785, 796 (lead opn. of George, C.J.)
[section 290 is “ ‘intended to promote the “ ‘state interest in controlling crime and
preventing recidivism’ ” ’ ”]; Castellanos, supra, at p. 803 (conc. opn. of
Kennard, J.) [same]; Wright, supra, 15 Cal.4th 521, 527 [same]; Wright, supra, at
p. 530, fn. 3, quoting In re Parks (1986) 184 Cal.App.3d 476, 481 [“ ‘[s]ection
290 was enacted to deter recidivism by facilitating the apprehension of repeat
offenders’ ”].)
40
convicted sex offenders such as Alva comes within the Eighth Amendment
definition of “punishment.”
Even if the Legislature intended, as one desirable result of registration, that
convicted sex offenders would be discouraged from reoffending by the increased
risk of detection and apprehension, this is not, in our view, the kind of “retributive
or deterrent purpose” that “punishment” analysis is intended to address. The
object of punishment is to exact retribution for past misconduct, and to deter
future transgressions by imposing painful consequences for violations already
committed. Penal deterrence operates by warning the offender, and others tempted
to commit the same violation, of the price to be paid for such actions. Section 290
has no such purpose. By providing for the collection of information about the
identity and whereabouts of convicted sex offenders, the statute simply makes it
harder for such persons to reoffend without getting caught. If deterrence is a
natural, probable, and even purposeful consequence of this regulatory scheme, that
does not make it punitive.16
16
A contrary determination might bring many well-established regulatory
tools under Eighth Amendment scrutiny. For example, state and federal law is rife
with requirements that businesses submit reports, and maintain records subject to
government inspection, regarding specified details of their operations. (See, e.g.,
Craib v. Bulmash (1989) 49 Cal.3d 475, 478-479 [employee identification and
payroll records].) Such measures help the government to monitor the conduct of
such entities and to identify violators of both penal and regulatory laws. For that
very reason, they certainly have a deterrent effect on the commission of such
violations, and this effect may even have been contemplated by the legislators who
adopted the reporting requirements. But were this form of deterrence subject to
Eighth Amendment examination, legitimate regulatory efforts would be sorely
tested. Indeed, as the concurring opinion in Castellanos, supra, 21 Cal.4th 785,
observed, “[r]equiring automobile owners to register their vehicles aids in the
detection of crime, but that does not make registration punishment.” (Id. at p. 804
(conc. opn. of Kennard, J.).)
41
Since Austin, supra, 509 U.S. 602, was decided, the high court has
recognized in other contexts that not all deterrence is penal in nature. (See Smith,
supra, 538 U.S. 84, 102 [for ex post facto purposes, sex offender registration law
is not punishment simply because deterrent in part]; Ursery, supra, 518 U.S. 267,
292 [for double jeopardy purposes, deterrence may serve civil as well as criminal
goals]; Bennis v. Michigan (1996) 516 U.S. 442, 452 [for purposes of “takings”
clause, forfeiture may serve deterrent purposes apart from any punitive purpose];
see also Hudson v. United States (1997) 522 U.S. 93 (Hudson) [deeming “solely
remedial purpose” test “unworkable” for double jeopardy purposes, since all
regulatory sanctions are deterrent to some degree].)17 Under these circumstances,
17
In this regard, the high court has signalled that it finds the “solely remedial
purpose” language of Austin, supra, 509 U.S. 602 troublesome, and may not
intend it to have wide application. This language in Austin derived from Halper,
supra, 490 U.S. 435, a double jeopardy case involving monetary sanctions.
Halper held that a $2,000 “civil penalty” assessed for each of 65 violations of the
federal False Claims Act (in a case where the total sum fraudulently obtained was
$600) was “punishment” under the double jeopardy clause, thus precluding later
criminal prosecutions for the same violations. To reach this result, Halper
concluded for the first time that the double jeopardy clause extended to all
“punishment,” whether labeled “criminal” or “civil,” and determined that a
sanction was “punishment” for this purpose if it could not “fairly be said solely to
serve a remedial purpose, but rather [could] only be explained as also serving
either retributive or deterrent purposes” (Halper, supra, at p. 448), as where a
fixed-fee penalty was “overwhelmingly disproportionate” to the damage actually
caused (id. at p. 449). In Hudson, supra, 522 U.S. 93, decided after Austin (but
before Bajakajian, supra, 524 U.S. 321), the high court overruled Halper.
Hudson explained that Halper had erred in two respects: first, insofar as it applied
double jeopardy principles to “civil” sanctions, and second, insofar as it departed
from the Mendoza-Martinez test to conclude that a sanction must be “solely
remedial” to escape a designation as “punishment” for double jeopardy purposes.
The Hudson court observed, inter alia, that “[a]s subsequent cases have
demonstrated, Halper’s test for determining whether a particular sanction is
‘punitive,’ and thus subject to the strictures of the Double Jeopardy Clause, has
proven unworkable. We have since recognized that all civil penalties have some
(Footnote continued on next page.)
42
we remain convinced that the mandatory registration of convicted sex offenders is
not “punishment” for purposes of the Eighth Amendment simply because it may
hinder and discourage new crimes by increasing the ability of law enforcement
agencies to monitor such persons, to detect the identity of reoffenders, and to
locate and apprehend them if and when they reoffend.
Furthermore, even assuming that lack of a punitive purpose does not
necessarily exempt a measure from Eighth Amendment scrutiny, we note, as
above, that section 290 is not punitive by nature despite its purely regulatory and
remedial purpose.18 As indicted above, the registration provisions set forth in the
statute appear tailored to the regulatory goal. As applicable to Alva’s crime,
section 290 simply requires a convicted offender to provide, and to update at
specified intervals, information logically calculated to assist law enforcement
authorities to monitor his or her whereabouts, while it protects the offender’s
privacy by carefully restricting the public dissemination of this information.
(Footnote continued from previous page.)
deterrent effect. See Department of Revenue of Mont. v. Kurth Ranch [(1994)]
511 U.S. 767, 777 [fn.] 14; [Ursery, supra,] 518 U.S. 267, 284-285, [fn.] 2 . . . . If
a sanction must be ‘solely’ remedial (i.e., entirely nondeterrent) to avoid
implicating the Double Jeopardy Clause, then no civil penalties are beyond the
scope of the clause. . . .” (Hudson, supra, at pp. 101-102.) The same general
principle applies, for Eighth Amendment purposes, to regulatory sanctions, such
as registration, imposed on recidivist sex offenders.
18
Because Austin, supra, 509 U.S. 602, and Bajakajian, supra, 524 U.S. 321,
found that the forfeiture provisions there at issue were punitive in their purpose, at
least in part, those decisions had no occasion to determine whether, despite a
wholly remedial purpose, a measure might nonetheless be so punitive in nature as
to constitute “punishment” for Eighth Amendment purposes. We express no view
on the subject, except to note that we find no such punitive nature in section 290.
43
Given the “ ‘frightening and high’ ” danger of long-term recidivism by this class
of offenders (Smith, supra, 538 U.S. 84, 103; see also Stats. 1996, ch. 908, § 1,
subd. (a)), the permanent nature of the registration obligation also is designed to
serve legitimate regulatory aims.
Nor, we believe, is sex offender registration punitive under the Eighth
Amendment, except as applied only to those individual offenses and offenders that
have been demonstrated to present a requisite risk of dangerous recidivism. Here,
as in the ex post facto context (see Smith, supra, 538 U.S. 84, 103-104), the
Legislature must have regulatory leeway to deal with the serious problem of
recidivist sex offenses. Though Alva suggests otherwise, this leeway certainly
extends to crimes that involve or promote the pornographic exploitation of
children. In furtherance of its regulatory goal, the Legislature may extend its
monitoring provisions to this general class of offenses, without precise calibration
of the risks and dangers presented in each individual case. Even if the statute
affords less than a “close or perfect fit” with its nonpunitive aims (id. at p. 103),
that does not mean it “can only be explained,” to that extent, as serving a punitive
purpose (Austin, supra, 509 U.S. 602, 610, 621), or that it is otherwise
“punishment” as the Eighth Amendment uses that term.19
19
Both Austin, supra, 509 U.S. 602, and Bajakajian, supra, 524 U.S. 321,
indicated, inter alia, that the forfeitures there at issue—of all property or currency
involved in the underlying offenses—could not be justified on the nonpunitive
ground that they reimbursed the government for associated costs or damage,
because they bore no correlation to such demonstrated costs or damage, and even
if they had some remedial purpose, they were still punishment insofar as they
could only be explained, at least in part, as punitive. (See Austin, supra, at
pp. 621-622; Bajakajian, supra, at p. 329 & fn. 4.) At oral argument, Alva’s
counsel suggested this means a sanction must exactly serve its legitimate remedial
purpose, such that any disability imposed beyond what is minimally necessary to
achieve a proven regulatory, compensatory, or remedial need is “punishment” for
(Footnote continued on next page.)
44
For all these reasons, we conclude that section 290, insofar as it requires
certain convicted sex offenders to register with law enforcement authorities, does
not impose “punishment” subject to scrutiny under the Eighth Amendment to
determine whether such punishment is “cruel and unusual.”20
(Footnote continued from previous page.)
purposes of the Eighth Amendment. In the context presented here, we disagree.
As counsel for respondent has observed, governmental exactions of money and
property, such as those at issue in Austin and Bajakajian, are historically viewed
as punishment to the extent not closely applied to compensatory or remedial ends.
Moreover, because the intrinsic value of such exactions is quantifiable, it makes
some sense, in the Eighth Amendment context, to hold that the government must
separate those portions which are solely remedial from the remainder, which are
necessarily punitive. By contrast, sex registration is not historically viewed as
punishment at all, and the means necessary to serve its legitimate regulatory aims
are not so clearly quantifiable. Thus, even if section 290 lacks the precise fit upon
which Alva insists, this does not mean the statute can only be explained, at least in
part, as punishment.
20
In reaching this conclusion, we join the vast majority of decisions, both
federal and state, and decided both before and after Austin, supra, 509 U.S. 602,
which have concluded that because sex offender registration laws do not impose
“punishment,” they do not violate constitutional provisions banning punishments
that are cruel and/or unusual. (E.g., Cutshall v. Sundquist (6th Cir. 1999) 193 F.3d
466, 477 [Tenn. statute; neither registration nor public notification provisions are
punishment]; Roe v. Farwell (D.Mass. 1998) 999 F.Supp. 174, 192-193 [Mass.
statute; registration provisions are not punishment; certain public access
provisions are punishment, but not cruel and unusual]; Lanni v. Engler
(E.D.Mich. 1998) 994 F.Supp. 849, 854-855 [Mich. statute; neither registration
nor public access provisions are punishment]; Alan A. v. Verniero (D.N.J. 1997)
970 F.Supp. 1153, 1193-1194 [N.J. statute; community notification provisions are
not punishment, and are not cruel]; Doe v. Kelley (W.D.Mich. 1997) 961 F.Supp.
1105, 1112 [Mich. statute; public access provisions not punishment]; Doe v. Weld
(D.Mass. 1996) 954 F.Supp. 425, 434-436 [Mass. statute; neither registration nor
community notification provisions are punishment as applied to juvenile
offenders]; State v. Cameron (Ariz.Ct.App. 1996) 916 P.2d 1183, 1185-1186
[mandatory registration of misdemeanor sex offenders is not punishment]; In re
(Footnote continued on next page.)
45
For similar reasons, we believe that Reed, supra, 33 Cal.3d 914, erred by
reaching a contrary conclusion under the California Constitution’s “cruel or
unusual punishment” clause. We see no basis to find a different meaning of
“punishment” for state purposes than would apply under the Eighth Amendment.
We recognize that article I, section 17 of the California Constitution bans
“cruel or unusual punishment” (italics added), while the federal clause prohibits
only “cruel and unusual punishments” (italics added). Even if this implies that the
state clause may proscribe some “punishment[s]” that the federal clause would
(Footnote continued from previous page.)
J.W. (Ill. 2003) 787 N.E.2d 747, 761-762, cert. denied, ___ U.S. ___ [124 S.Ct.
222] [neither registration nor public notification provisions applicable to juveniles
are punishment]; People v. Malchow (Ill. 2000) 739 N.E.2d 433, 440-441 [same,
as applied to adults]; In re Ayres (Mich.Ct.App. 1999) 608 N.W.2d 132, 135-139
[registration provisions applicable to juvenile offenders are not punishment];
Doe v. Poritz, supra, 662 A.2d 367, 405 [neither registration nor community
notification provisions are punishment]; State v. Dobies (Ohio Ct.App. 2001)
771 N.E.2d 867, 871 [neither registration nor community notification
requirements imposed on sexual predators are punishment]; Meadows v. Board of
Parole (Or.Ct.App. 2002) 47 P.3d 506, 513 [designation as sexual predator, with
consequent registration and community notification, is not punishment];
Meinders v. Weber (S.D. 2000) 604 N.W.2d 248, 262, fn. 5 [lifetime registration
and public access provisions, as applied to specified sex offenses including
possession of child pornography, are not punishment]; Ex parte Robinson
(Tex.Crim.App. 2003) 116 S.W.3d 794, 797-798 [sex offender registration
provisions are not punishment]; Snyder v. State (Wyo. 1996) 912 P.2d 1127, 1131
[sex offender registration provisions are not punishment]; but see State v. Snelling
(Kan. 1999) 975 P.2d 259, 260-262 [though Kansas Supreme Court previously
held that public access provisions of Kansas registration law are “punishment” for
ex post facto purposes, such provisions do not impose “cruel and unusual”
punishment as applied to one convicted of “sexually violent crime”]; State v. Scott
(Kan. 1998) 961 P.2d 667, 670-677 [same, as applied to conviction for aggravated
sexual battery].)
46
allow (cf., e.g., People v. Anderson (2001) 25 Cal.4th 543, 602; People v. Dillon
(1983) 34 Cal.3d 441, 477-482 (Dillon); In re Lynch (1972) 8 Cal.3d 410, 424-429
(Lynch); People v. Anderson (1972) 6 Cal.3d 628; but see Cal. Const., art. I, § 27),
we have never suggested that article I, section 17 employs a different or broader
definition of “punishment” itself than applies under the Eighth Amendment.
Reed itself implied the contrary by relying heavily upon federal authority,
particularly Mendoza-Martinez, supra, 372 U.S. 144, that interpreted the federal
Constitution. (Reed, supra, 33 Cal.3d 914, 919-922.) As we have seen, however,
intervening developments (1) show that Reed misapplied the test by which it
purported to determine punishment, and (2) render unpersuasive Reed’s
characterization of sex offender registration as punitive.21
21
In particular, Reed erred, for several reasons, in concluding that sex
registration was “punishment,” for purposes of California’s ban on cruel or
unusual punishment, because it imposed obligations disproportionate to the
arguably minor offense at issue in that case (public lewd conduct), and because “it
[was] not clear that the measure is effective in practice.” (Reed, supra, 33 Cal.3d
914, 922 & fn. 7; also cf. Castellanos, supra, 21 Cal.4th 785, 798 (lead opn. of
George, C.J.).) First, Reed made these observations while purporting to apply the
Mendoza-Martinez factor concerning whether a regulatory measure is excessive in
relation to its nonpunitive purpose. However, newer decisions make clear that
registration is not an excessive means of regulating the problem of recidivist sex
crime, even when applied categorically, and without precise calibration of the
risks and dangers posed by each covered offense and offender. (Smith, supra,
538 U.S. 84, 103-104; Castellanos, supra, 21 Cal.4th 785, 796 (lead opn. of
George, C.J.); see also id. at p. 804 (conc. opn. of Kennard, J.).) By similar
reasoning, a regulatory measure need not be proven perfectly effective in order to
avoid the label of “punishment.” Second, a claim of cruel and/or unusual
punishment involves two questions; first, whether the sanction is punishment, and
second, if so, whether it is cruel and/or unusual. Reed conflated the two issues,
wrongly reasoning that disproportionality to the crime was a factor in determining
the initial, or threshold, issue whether the sanction was punishment at all. To the
contrary, this form of disproportionality analysis applies only at the second stage,
where punishment has already been found or assumed, and the only remaining
(Footnote continued on next page.)
47
We therefore conclude that mandatory sex offender registration, as
provided by section 290, is not “punishment” for purposes of either the Eighth
Amendment or article I, section 17 of the California Constitution. To the extent
In re Reed (1983) 33 Cal.3d 914 reached a contrary determination under the
California Constitution, Reed is hereby overruled.
CONCLUSION
Our holding means that the registration requirement imposed upon Alva,
who was convicted of one of the offenses covered by the sex offender registration
(Footnote continued from previous page.)
question is whether such punishment is constitutionally excessive. (See Dillon,
supra, 34 Cal.3d 441, 478 [sentence for first degree murder as grossly
disproportionate on particular facts]; Lynch, supra, 8 Cal.3d 414-424 [one-year-to-
life prison term for second lewd-exposure conviction].) Third, to the extent Reed
based its holding on evidence that mandatory sex registration of public lewdness
misdemeanants simply overwhelmed the police computers then in use, and was
thus “ ‘dysfunctional’ ” (Reed, supra, at p. 922, fn. 7), that analysis is blunted by
intervening advances in technology. Moreover, in more recent times the
Department has made clear to the Legislature its view that mandatory sex offender
registration generally is a highly effective law enforcement tool in dealing with
recidivist sexual misconduct. (See, e.g., Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 3513 (1993-1994 Reg. Sess.) (Assem. Bill No. 3513) as amended
June 2, 1994, p. 5; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 3513 as amended Aug. 26, 1994, p. 3.)
48
statute, must be upheld. Because the Court of Appeal reached the same result (by
finding that registration, even if punishment, was not cruel and/or unusual in
Alva’s case), the Court of Appeal’s judgment is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
49
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Alva on Habeas Corpus
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 89 Cal.App.4th 758
Rehearing Granted
__________________________________________________________________________________
Opinion No. S098928
Date Filed: June 28, 2004
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Patti Jo McKay
__________________________________________________________________________________
Attorneys for Appellant:
Steven T. Flowers for Petitioner Leon Casey Alva.
__________________________________________________________________________________
Attorneys for Respondent:
James K. Hahn and Rockard J. Delgadillo, City Attorneys, Debbie Lew, Assistant City Attorney, and
Candice I. Horikawa, Deputy City Attorney, for Respondent the People.
50
Counsel who argued in Supreme Court (not intended for publication with opinion):
Steven T. Flowers
468 North Camden Drive, Suite 200
Beverly Hills, CA 90210
(310) 657-6940
Candice I. Horikawa
Deputy City Attorney
500 City Hall East
200 North Main Street
Los Angeles, CA 90012
(213) 978-7980
51
Opinion Information
| Date: | Docket Number: |
| Mon, 06/28/2004 | S098928 |
Parties
| 1 | Alva, Leon Casey (Petitioner) Represented by Steven T. Flowers 468 North Camden Drive, Suite 200 468 North Camden Drive, Suite 200 Los Angeles, CA |
| 2 | The People (Non-Title Respondent) Represented by Attorney General - Los Angeles Office 300 South Spring Street 300 South Spring Street Suite 500 Los Angeles, CA |
| 3 | The People (Non-Title Respondent) Represented by Candice I. Horikawa Office of the City Attorney 200 North Main Street, #500 CHE Los Angeles, CA |
| Disposition | |
| Jun 28 2004 | Opinion: Affirmed |
| Dockets | |
| Jul 9 2001 | 2nd petition for review filed Respondent People |
| Jul 9 2001 | Petition for review filed Petitioner Leon Casey Alva |
| Jul 10 2001 | Received Court of Appeal record 1 envelope |
| Jul 30 2001 | Request for Depublication (petition/rev. pending) attorney for petitoner |
| Aug 17 2001 | Time extended to grant or deny review to and including 10/7/2001 |
| Sep 19 2001 | Petition for Review Granted (criminal case) People's petition GRANTED. Petnr's petition DENIED. votes: George CJ,Kennard,Baxter,Werdegar,Chin,Brown JJ. |
| Oct 12 2001 | Application for Extension of Time filed opening brief/merits to 11-16-01>respondent People |
| Oct 24 2001 | Extension of Time application Granted to 11-16-01 for resp (People) to file the opening brief on the merits. |
| Nov 15 2001 | Opening brief on the merits filed respondent People |
| Dec 13 2001 | Request for extension of time filed answer brief/merits to 1-17-02>petitioner Leon Casey Alva |
| Dec 18 2001 | Note: |
| Dec 21 2001 | Extension of time granted to 1-16-02 for petnr to file the answer brief on the merits. |
| Jan 16 2002 | Answer brief on the merits filed petitioner Leon Casey Alva |
| Feb 4 2002 | Reply brief filed (case fully briefed) by respondent People |
| Mar 12 2003 | Change of Address filed for: respondent People [record updated] |
| Mar 12 2003 | Supplemental brief filed by respondent People |
| Oct 29 2003 | Supplemental letter briefs requested Petnr's response to resp's brief (filed 3-13-03) is due by 11-10-03. |
| Nov 10 2003 | Request for extension of time filed supplemental brief to 11-24-03>>petitioner Leon Casey Alva |
| Nov 20 2003 | Extension of time granted to 11-24-03 for petnr to file the supplemental letter brief. No further extensions of time will be granted. |
| Nov 24 2003 | Supplemental brief filed by counsel for petitioner Leon Casey Alva (letter brief) |
| Mar 10 2004 | Case ordered on calendar 4-6-04, 9am, L.A. |
| Mar 19 2004 | Supplemental brief filed Respondent's supplemental brief on the merits |
| Apr 6 2004 | Cause argued and submitted |
| Jun 28 2004 | Opinion filed: Judgment affirmed in full Majority opinion by Baxter, J. -------------joined by George, C.J., Kennard, Werdegar, Chin, Brown, Moreno, JJ. |
| Aug 4 2004 | Remittitur issued (criminal case) |
| Briefs | |
| Nov 15 2001 | Opening brief on the merits filed |
| Jan 16 2002 | Answer brief on the merits filed |
| Feb 4 2002 | Reply brief filed (case fully briefed) |
