No. 01‑729
	
In The Supreme Court of The United States	
			
 GLENN G. GODFREY AND BRUCE M. BOTELHO, Petitioners,

v.

JOHN DOE I, JANE DOE, AND JOHN DOE II, Respondents.	
			
On Writ Of Certiorari To The
United States Court Of Appeal For The Ninth Circuit	
			
Brief Of The State Of California ex rel. Bill Lockyer, Attorney General, And The State Of Colorado ex rel. Ken Salazar, Attorney General, And The 41 States And Territories Of Alabama, Arizona, Connecticut, Delaware, The District of Columbia* As Amici Curiae In Support Of Petitioner, The State Of Alaska	

KEN SALAZAR
Attorney General of Colorado
ALAN GILBERT
Solicitor General
DONALD S. QUICK
Deputy Attorney General
MATTHEW S. HOLMAN
Assistant Attorney General
Counsel of Record
  Department of Law
  1525 Sherman Street
  Denver, Colorado 80203
  (303) 866‑5785	BILL LOCKYER
Attorney General of the State of California
ROBERT R. ANDERSON
Chief Assistant Attorney General
JO GRAVES
Senior Assistant Attorney General
STAN CROSS
Supervising Deputy Attorney General
JANET E. NEELEY
Deputy Attorney General
Counsel of Record
   1300 I Street
   P.O. Box 944255
   Sacramento, CA 94244‑2550
   Telephone: (916) 324‑5257
   Fax: (916) 324‑2960
[*Additional States, Territories and Counsel    Listed on Inside Cover]

Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virgin Islands, Washington, West Virginia, and Wisconsin
_________________________________________________

BILL PRYOR
Attorney General
State of Alabama

JANET NAPOLITANO
Attorney General
State of Arizona

RICHARD BLUMENTHAL
Attorney General
State of Connecticut
			
M. JANE BRADY
Attorney General
State of Delaware

ROBERT R. RIGSBY
Corporation Counsel
Government of the 
District of Columbia

ROBERT A. BUTTERWORTH
Attorney General
State of Florida

THURBERT E. BAKER
Attorney General
State of Georgia

EARL I. ANZAI
Attorney General
State of Hawaii

JAMES E. RYAN
Attorney General
State of Illinois

STEVE CARTER
Attorney General
State of Indiana

CARLA J. STOVALL
Attorney General
State of Kansas

ALBERT B. CHANDLER III	
Attorney General
State of Kentucky

RICHARD P. LEYOUB
Attorney General
State of Louisiana

J. JOSEPH CURRAN, JR.
Attorney General
State of Maryland

THOMAS F. REILLY
Attorney General
State of Massachusetts

MIKE MOORE
Attorney General
State of Mississippi

JEREMIAH W. (JAY) NIXON
Attorney General
State of Missouri

MIKE MCGRATH
Attorney General
State of Montana

DON STENBERT
Attorney General
State of Nebraska

FRANKIE SUE DEL PAPA
Attorney General
State of Nevada

PHILLIP T. MCLAUGHLIN
Attorney General
State of New Hampshire

PATRICIA A. MADRID
Attorney General
State of New Mexico

DAVID SAMSON
Attorney General
State of New Jersey

ELIOT SPITZER
Attorney General
State of New York

ELIOT SPITZER
Attorney General
State of New York

WAYNE STENEHJEM
Attorney General
State of North Dakota

BETTY D. MONTGOMERY
Attorney General
State of Ohio

W.A. DREW EDMONDSON
Attorney General
State of Oklahoma

HARDY MYERS
Attorney General
State of Oregon

D. MICHAEL FISHER
Attorney General
State of Pennsylvania

ANABELLE RODRIGUEZ
Attorney General
Commonwealth of Puerto Rico

CHARLES M. CONDON
Attorney General
State of South Carolina

MARK BARNETT
Attorney General
State of South Dakota

PAUL G. SUMMERS
Attorney General
State of Tennessee

JOHN CORNYN
Attorney General 
State of Texas

MARK L. SHURTLEFF
Attorney General
State of Utah

WILLIAM H. SORRELL
Attorney General
State of Vermont

IVER A. STRIDIRON
Attorney General 
  of the Virgin Islands

CHRISTINE O. GREGOIRE
Attorney General
State of Washington

DARRELL V. McGRAW, JR.
Attorney General
State of West Virginia

JAMES E. DOYLE
Attorney General
State of Wisconsin

	Question Presented

		Alaska’s sex offender registration act requires convicted sex offenders to register with the Alaska Department of Public Safety and makes offender information available to the public.  The department elected to publish the information on the Internet.  This procedure raises the following question: 

		Does the statute, on its face or as implemented by the Department of Public Safety, impose punishment for purposes of the Ex Post Facto Clause of the United States Constitution?

		TABLE OF AUTHORITIES

	Page

Cases

A.A. v. New Jersey 176 F. Supp.2d 274 (D. N.J. 2001)
	9

Allen v. Illinois 478 U.S. 364, 36892 L.Ed.2d 296106 S.Ct. 2988 (1986)
	13

Calder v. Bull3 U.S. 386, 390 (1798)
	13

Calif. Dept. of Corrections v. Morales 514 U.S. 499 131 L.Ed.2d 588115 S.Ct. 1597 (1995)
	13, 14

Carey v. Population Services, Intern. 431 U.S. 678, 684-68552 L.Ed.2d 67597 S.Ct. 2010 (1977)
	18

Collins v. Youngblood 497 U.S. 37, 42 110 S.Ct. 2715 111 L.Ed.2d 30 (1990)
	13

Cox Broadcasting Corp. v. Cohn 420 U.S. 469 95 S.Ct. 102, 943 L.Ed.2d 328 (1975)
	18
De Veau v. Braisted 363 U.S. 144, 158-16080 S.Ct. 1146, 1153-54, 4 L.Ed.2d 1109 (1960)
	22, 24, 27

Dean v. State 60 S.W.3d 217 (Tx.App. 2001)
	13

Department of Justice v. Reporters Comm. for
 Freedom of the Press 489 U.S. 749, 764-65, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989)
	17

Department of Revenue v. Kurth Ranch 511 U.S. 767, 777, n. 14, 114 S. Ct. 1937 128 L. Ed. 2d 767 (1994)
	27

DeShaney v. Winnebago County Dep't of Soc. Services 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989)
	17

Doe v. Dept. of Public Safety 271 F.3d 38 (2d Cir. 2001)
cert. gr., 5‑20‑02 (case no. 01‑1231)
	7, 9, 19

Doe v. Otte 259 F.3d 979 (9th Cir. 2001)
cert. gr., 2‑19‑02
	1, 9, 10, 21, 24, 25

Doe v. Poritz 662 A.2d 367, 375 (N.J. 1995)
	12

E.B. v. Verniero 119 F.3d 1077, 1089-1090, 1104 (3d Cir. 1997)
	17, 19

Femedeer v. Haun 227 F.3d 1244, 1253 (10th Cir. 2000)
	12, 26

Flemming v. Nestor 363 U.S. 603, 617, 4 L. Ed. 2d 1435 80 S. Ct. 1367 (1960)
	14, 27

Hawker v. New York 170 U.S. 189 42 L. Ed. 100 218 S. Ct. 573 (1898)
	27

Heller v. Doe 509 U.S. 312, 323, 113 S.Ct. 2637, 2644, 125 L.Ed.2d 257 (1993)
	21

Hudson v. U.S. 522 U.S. 93, 101 118 S.Ct. 488 139 L.Ed.2d 450 (1997)
	14-16, 23

Jones v. United States 463 U.S. 354, 364 103 S.Ct. 3043, 304 977 L.Ed.2d 694 (1983)
	21, 25

Kansas v. Hendricks 521 U.S. 346, 117 S.Ct. 2072
138 L.Ed.2d 501 (1997)
	3, 14, 20, 21, 26

Kennedy v. Mendoza‑Martinez 372 U.S. 144  83 S.Ct. 554 
9 L.Ed.2d 644 (1963)
	3, 4, 14, 15, 20, 22, 23, 25, 26

Lambert v. California 355 U.S. 225, 229, 78 S.Ct. 240 2 L.Ed.2d 228 (1957)
	12, 22

Mahler v. Eby 264 U.S. 3268 L. Ed. 54944 S. Ct. 283 (1924)
	27

Moore v. Avoyelles Corr. Ctr. 253 F.3d 870, 873 (5th Cir. 2001)
	13

Paul v. Davis 424 U.S. 693, 47 L.Ed.2d 405, 96 S.Ct. 1155 (1976)
	20, 23

People v. Adams 581 N.E.2d 637 (Ill. App. 1991)
	13

People v. Guadalupe DeLeon (No. F017947, Cal. App. 1993)
	28

People v. Rhoades No. 98F00230 (Sacramento Sup. Ct.; 
automatic appeal pending)
	19

Planned Parenthood v. Casey 505 U.S. 833, 848120 L.Ed.2d 674 112 S.Ct. 2791 (1992)
	18

Russell v. Gregoire124 F.3d 1079, 1088-1089 (9th Cir. 1997)
	23, 24

Seling v. Young 531 U.S. 250 121 S.Ct. 727 148 L.Ed.2d 734 (2001)
	17

Smith v. Daily Mail 443 U.S. 97 61 L.Ed.2d 399 99 S.Ct. 2667 (1979)
	18

State v. Pickens 558 N.W.2d 396, 398 (Iowa 1997)
	13

United States v. Halper 490 U.S. 435 104 L. Ed. 2d 487109 S. Ct. 1892 (1989)
	15

United States v. Ursery 518 U.S. 267, 290 116 S.Ct. 1235 135 L.Ed.2d 549 (1996)
	14, 24

United States v. Ward 448 U.S. 242, 249 100 S.Ct. 2636 65 L.Ed.2d 742 (1980)
	14

Whalen v. Roe429 U.S. 589 51 L. Ed. 2d 6497 S. Ct. 869 (1977)
	19, 23

Statutes

Ala. Code, § 15-20-20.1
	13

California Penal Code
  § 290
	13
  § 290, subdivisions (m), (n)
	7
  § 290.4, subdivision (m)
	27
  § 290.5
	5

Fla. Stat. § 775.21
	5

730 ILCS 150/10
	20

Minn. Stat. 
  § 243.166, subd. 6
	20

Or. Rev. Stat. 
  § 181.592
	7
  § 181.600
	5
  § 181.602
	13

S.C. Code Ann. 
  § 23-3-490
	7

13 V.S.A. § 5411(c)
	5

Other Authorities

Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. 14071
	4
42 U.S.C. 14071(b)(1)(B)
	5
42 U.S.C. 14071(b)(3)(B)
	5
42 U.S.C. 14071(b)(6)(B)(i)‑(ii)
	5

Cal.Stats. 1947, ch. 1124, § 1
	4

16A Am. Jur.2d, Constitutional Law § 563, at 584
	18

Reports by California Department of Justice to the Legislature on California’s Megan’s Law
	6, 27, 28

2  Comparet-Cassani, A Primer on the Civil Trial of a Sexually Violent Predator, 37 San Diego Law Review, 1057, 1072 n. 80 (2000)
	10, 11

Bachman, Violence Against Women:  Estimates from the Redesigned Survey, National Crime Victimization Survey (B.J.S., U.S.D.O.J., Aug. 1995)
	10

Beck, Recidivism of Prisoners Released in 1983 (B.J.S., U.S. D.O.J. 1997)
	11

Summary of State Sex Offender Registry Dissemination Procedures 
(B.J.S., U.S. D.O.J. 1999) [available at www.ojp.usdoj.gov]
	6

Center for Sex Offender Management, Sex Offender Registration:  
Policy Overview and Comprehensive Practices (Oct. 1999) at 1
[available at www.csom.org]
	4, 5, 6, 9

Center for Sex Offender Management,
Community Notification and Education (April 2001) at 5
[available at www.csom.org]
	6-9, 16, 18

English, The Containment Approach:  An Aggressive Strategy for the Community 
Management of Adult Sex Offenders, 4 Psychol. Pub. Pol’y & L. 218 n.1 (1998)
	10, 12

Greenfeld, Child Victimizers:  
Violent Offenders and Their Victims (B.J.S., U.S. D.O.J. March 1996)
	11, 25

Groth, Undetected Recidivism Among 
Rapists and Child Molesters, 28 Crime and Delinquency 450 (1982)
	11

Hanson, Dynamic Predictors of Sexual Recidivism 
1998-1, Solicitor General of Canada 22 (1998)
	16

R. Karl Hanson, et al,  Long-Term Recidivism of 
Child Molesters, 61 Consulting and Clinical Psychol. 646, 648 (1993)
	10, 22

Hindman, J.  Just Before Dawn 4 (1989)
	12

Wayne A. Logan, A Study in "Actuarial Justice": Sex Offender Classification Practice and Procedure, 3 Buff. Crim. L.R. 593 (2000)
	7, 8

Randy K. Otto, On the Ability of Mental Health 
Professionals to "Predict Dangerousness": A 
Commentary on Interpretation of the 
"Dangerousness" Literature, 
18 Law & Psychol. Rev. 43, 45, 62-63 (1994)
	22

Perkins, Criminal Victimization in the United States, 1993, National Crime Victimization Survey Report ( B.J.S., U.S. D.O.J. 1996) at 1
	10

Prentky, Recidivism Rates Among Child Molestors
and Rapists:  A Methodological Analysis, 
21 Law and Human Behavior 635 (1997)
	10, 11, 25

Recidivism of Sex Offenders, Center for Sex Offender Management (May 2001)
[available at www.csom.org]
	10

State Survey by amici states of California 
and Colorado
[lodged with this Court]
	6, 9, 24

http://www.klaaskids.org
	9

www.calsexoffenders.net
19

	IN THE SUPREME COURT OF THE UNITED STATES	
	
No. 01‑729

 GLENN G. GODFREY AND BRUCE M. BOTELHO, Petitioners,

v.

JOHN DOE I, JANE DOE, AND JOHN DOE II, Respondents.	

		The Amici States file this brief pursuant to Rule 37 of the Rules of the Supreme Court of the United States.

		This brief is respectfully submitted in support of Petitioner, the State of Alaska, and urges reversal of Doe v. Otte, 259 F.3d 979 (9th Cir. 2001).  In an opinion authored by Judge Reinhardt, the Ninth Circuit Court of Appeals held Alaska’s sex offender registration and notification laws violated the Ex Post Facto Clause of the United States Constitution, reversing the decision of the Alaska district court. 
		All the states have a compelling interest in monitoring the whereabouts of convicted sex offenders, facilitating the investigation of sex crimes, and in disseminating information about registered sex offenders to protect the public.   All 50 states require registration by sex offenders, and most have some form of community notification regarding sex offender registrants.  Thirty states and the District of Columbia use the Internet to disseminate information about registered sex offenders, and one other state has authorized the creation of an Internet website.  Those states which do not place their sex offender registries on the Internet use a variety of other methods for notification, including making registries available at local law enforcement offices, personal notice, flyers, the news media, state-sponsored telephone lines, and mailed notices.  
		The states have a strong interest in preventing reoffense by convicted sex offenders, and in reducing the number of victims of sex crimes.  The impact on society of sexual abuse is incalculable, its effects often devastating not only to the victim of the immediate crime, but to future generations.

		The differences in the states’ laws on sex offender registration and notification are not material for purposes of an ex post facto analysis. No state’s law is so punitive in effect that it nullifies legislative intent that the laws constitute a regulatory scheme enacted for the protection of public safety.  Although some states have chosen to place limits on the scope, extent and manner of sex offender notification, other states are not mandated by the federal Constitution to enact similar restrictions.  The most important factor in the ex post facto analysis is the fact that the states’ sex offender registration and notification laws were enacted to serve important nonpunitive goals, based on appropriate decisions by state legislatures balancing the interests of individual sex offenders with societal risks.  Respondents cannot demonstrate by the clearest proof that sex offender registration or notification laws are punitive in either purpose or effect.
	Over the past two decades, the states have confronted the danger of recidivism by sex offenders through the enactment of registration and notification laws.  These laws vary in their scope, extent and manner.  But all are directed to the remedial purpose of preventing future offenses by providing information to law enforcement agencies and the public.  Typically, this is information that is already available to the public in different forms.
		In our federal system, the states are afforded wide latitude in assessing the risk posed by prior offenders and in fashioning laws designed to provide for public safety.  Kansas v. Hendricks, 521 U.S. 346, 360 n.3, 117 S.Ct. 2072, 2081 n.3, 138 L.Ed.2d 501, ___ (1997).  Deference to the states’ exercise of their police powers is an integral part of the ex post facto analysis:  a state’s intent that an Act is civil can only be overcome by the clearest proof that the Act is punitive in purpose and effect.  Kennedy v. Mendoza‑Martinez, 372 U.S. 144, 168‑169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).  The enactment of these laws is well supported by studies that demonstrate significant levels of recidivism among sex offenders and reveal the secrecy and trauma that envelops victims of sexual assaults.
		As set forth below, the states have crafted registration and notification laws to address the many facets of recidivism among sex offenders.  Some states have chosen to impose greater constraints on their own governments than those required by the federal Constitution.  This choice does not compel other states to limit the scope of their registration and notification laws.  All the states’ laws fall within the broad latitude that is afforded the states in acting for the public safety.
		This brief provides an overview of the registration and notification laws of the fifty states.  It then sets forth the research that supports the enactment of these laws.  Finally, it applies the ex post facto analysis articulated by this Court in Kennedy to the registration and notification laws.  As set forth below, these laws are not punitive in purpose or effect, and do not violate the constitutional prohibition against ex post facto laws.
		Although California enacted its sex offender registration law in 1947, retroactive to 1944 (Cal.Stats. 1947, ch. 1124, § 1), the vast majority of states enacted such laws within the last 15 years, many after 1994 in order to comply with federal law (the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. 14071) which set out minimum standards for state compliance.  Center for Sex Offender Management, Sex Offender Registration:  Policy Overview and Comprehensive Practices (Oct. 1999) at p. 1 (hereinafter "CSOM, Registration ").  (All CSOM publications cited herein are available at .)  Registration is intended to provide law enforcement with an investigative tool to identify possible suspects for unsolved sex offenses, and to enable law enforcement to locate such suspects.
		State laws require sex offenders to register prior to or upon release from confinement, or when released on probation, and typically require that offenders be notified of the duty to register at sentencing or before release from confinement.  CSOM, Registration, at 4.  The information collected includes the offender’s name, address, fingerprints, and a law enforcement identification number, and 39 states also require a photograph as part of the registration process.  CSOM, Registration, at 4.  Some states also collect information on the registrant’s physical description, date of birth, current employment, residence history, and vehicle registration numbers.  Federal law also mandates that the states require sexually violent predators to provide "documentation of any treatment received for their mental abnormality or personality disorder."  42 U.S.C. 14071(b)(1)(B).  However, this information is not made subject to public notification.
		Most states require registrants to register for a minimum of 10 years, and in 1999 40 states required lifetime registration for specified sex offenders.  Federal law now requires the states to mandate lifetime registration for sexually violent predators, aggravated and recidivist sex offenders.  CSOM, Registration, at 5, and see 42 U.S.C. 14071(b)(6)(B)(i)‑(ii).  Some states allow designated offenders to petition for relief from the registration requirement after the 10‑year period is completed.  See, e.g., Cal. Pen. Code, § 290.5; Or. Rev. Stat. § 181.600; 13 V.S.A. § 5411(c); Fla. Stat. § 775.21.
		All the states require registrants to update their addresses at least annually, and federal law requires the states to mandate quarterly updates for sex offenders convicted of "aggravated" offenses.  42 U.S.C. 14071(b)(3)(B).  Finally, most states (42) require the registration of some or all sex offenders convicted prior to the enactment of the state’s registration law, but 17 apply the law retroactively only to those offenders who were incarcerated or under supervision at the time of the law’s enactment.  CSOM, Registration at 6‑7.  Some states’ registries which predated the state’s notification law contained significant numbers of registered sex offenders in the state, whose whereabouts were unknown to the public, and who would have remained unknown had the law been prospective only.  For example, when its notification law was enacted in 1996, California had about 46,000 such offenders.  1998 Report by California Department of Justice to the Legislature on California’s Megan’s Law, lodged herewith.  Minnesota estimates it had 7,000 such offenders.  State Survey by amici states of California and Colorado, lodged herewith [hereinafter "State Survey"].
		Most states maintain a central sex offender registry.  CSOM, Registration at 8.  Local law enforcement or community supervision agencies receive the registration information from the registrant and forward it to the central registry. Bureau of Justice Statistics, Summary of State Sex Offender Registry Dissemination Procedures (1999) [available at 
		Community notification laws vary more from state to state than sex offender registration laws.  States vary in the procedures used for performing notification; the category of offenders subject to notification; the scope, form and content of notification; and the designation of agencies to perform notification.  The state’s sex offender notification laws can be divided into three categories:  (1) broad community notification (19 states); (2) notification to those deemed at risk (14 states); and (3) passive notification, which requires citizens or community organizations to access sex offender information themselves (17 states).  Community Notification and Education, April 2001, at 5 [hereinafter CSOM, Notification].
		In states with broad community notification, law enforcement actively and widely releases information on designated sex offenders to the public.  Some states define by statute the population subject to disclosure; others conduct risk assessments or rely on law enforcement agencies’ discretion.   In states notifying only those deemed "at risk," organizations typically notified are child care facilities, religious organizations, public and private schools, and other entities that provide services to children or vulnerable populations.  States allowing citizens access to sex offender information (passive notification) do so generally by making a central state registry public, although some require the citizen to be at risk from a specific offender in order to obtain access (defined by proximity to the offender’s residence).  CSOM, Notification, at 5.
		Sex offenders are identified for notification in different ways.  The majority of states specify by statute which sex offenders are subject to notification, and generally do not distinguish between high and low risk offenders.  CSOM, Notification, at 6.  This has also been referred to as the "compulsory" method of notification, utilized by 20 states without an individual determination of risk.1/  In a few states2/, law enforcement agencies determine when or who to notify about particular offenders.  See, e.g., S.C. Code Ann. § 23-3-490; Or. Rev. Stat. § 181.592; Cal. Pen. Code § 290, subds. (m), (n).  Finally, several states assess the individual risk posed by each sex offender: 12 states designate a state agency to assess risk by using a written risk assessment instrument, and six states require that a committee assess the offender’s risk of recidivism.  CSOM, Notification, at 6.
		Of the states opting for risk-based assessments on individual sex offenders, six do not classify all sex offenders, but designate only sexually violent predators, either by review board (Colorado, Idaho, Georgia, Louisiana, North Carolina, and West Virginia) or by court determination (Florida).  Logan, supra note 1, at 606, nn. 53, 54.  Seven states allow law enforcement to make individual risk assessments. See supra note 2.  Twelve states require a risk assessment of all sex offenders be done by entities other than law enforcement.  Arkansas, Iowa, Massachusetts, Minnesota, Nevada, Oregon, Rhode Island, Texas and the District of Columbia utilize either a parole board, state Department of Corrections or special board to assess offenders; New Jersey uses a prosecutor-based assessment; Wyoming requires a judicial assessment; and in Montana and New York, courts make classification decisions based on initial assessments by experts who utilize risk assessment criteria and guidelines.  Logan, supra note 1, at 612-616; State Survey, supra note 1.  At least ten of the states utilizing individualized risk assessment allow sex offenders to contest decisions subjecting them to notification.  CSOM, Notification, at 10.
		Most states use one or more of the following methods of notification: Internet access, media release, door-to-door flyers, or mailed flyers. Approximately 30 states and the District of Columbia now operate Internet websites listing registered sex offenders, and Rhode Island has also passed a bill authorizing such a website.3/ California, Florida, New York, and Wisconsin maintain "800" or "900" telephone lines that the public may call to inquire whether individuals are registered sex offenders. In California, a CD-ROM containing a list of registered sex offenders is available for public viewing throughout the state at local law enforcement offices. CSOM, Notification, at 7.  Local law enforcement agencies in some states post lists of registered sex offenders in their jurisdictions on the Internet.4/

		The Otte court held that Alaska’s legislature did not intend its law to be punitive.  Alaska recognized the problem of sex offender recidivism and addressed it by releasing information to the community.  Otte, 259 F.3d at 986.  Similarly, other states have chosen to address the problem through registration and notification laws.
		Studies confirm the severity of the problem.  Approximately 500,000 rapes and sexual assaults are reported each year.  However, 80% of sexual assaults go unreported.  Perkins, Criminal Victimization in the United States, 1993, National Crime Victimization Survey Report (Bureau of Justice Statistics, U.S. Dep’t of Justice5/ 1 1996); Bachman, Violence Against Women:  Estimates from the Redesigned Survey, National Crime Victimization Survey (B.J.S., U.S.D.O.J., Aug. 1995); English, The Containment Approach:  An Aggressive Strategy for the Community Management of Adult Sex Offenders, 4 Psychol. Pub. Pol’y & L. 218 n.1 (1998).
		Sex offenders pose a substantial risk of reoffending.  Rapists have a recidivism rate of 49.4% to 63.8%; child molesters have a recidivism rate of 42% to 72%.6/ 2  Comparet-Cassani, A Primer on the Civil Trial of a Sexually Violent Predator, 37 San Diego Law Review, 1057, 1072 n. 80 (2000); Prentky, Recidivism Rates Among Child Molestors and Rapists:  A Methodological Analysis, 21 Law and Human Behavior 635 (1997); R. Karl Hanson, et al., Long-Term Recidivism of Child Molesters, 61 Consulting and Clinical Psychol. 646, 648 (1993); Recidivism of Sex Offenders, Center for Sex Offender Management (May 2001).  Convicted sex offenders are 10.5 times more likely to be arrested for a rape than non-rapist offenders.  Beck, Recidivism of Prisoners Released in 1983 (B.J.S., U.S. D.O.J. 1997).  Rapists commit an average of 5.2 rapes that go undetected, and child molesters have an average of 4.7 unreported victims.7/ 3  Groth, Undetected Recidivism Among Rapists and Child Molesters, 28 Crime and Delinquency 450 (1982).
		The studies indicate that sex offenders pose a risk of reoffending throughout their lives.  "Contrary to conventional wisdom, most reoffenses did not occur within the first several years."  Prentky, at 652.  The "decay process" for rapists and child molesters is relatively slow and steady; offenders reoffend as late as twenty-four years after release from incarceration.  Comparet-Cassani, at 1072.  In later years, the recidivism rate for child molesters actually increased.  Prentky, at 651-653.  
		Most sexual assaults are committed by an offender who is known to the victim.  A Justice Department study showed that only 18% of rapes and sexual assault and 9.9% of child molestations are committed by strangers.  Greenfeld, Child Victimizers:  Violent Offenders and Their Victims (B.J.S., U.S. D.O.J. March 1996).  The majority of the sexual assaults are committed by friends or acquaintances (53%), someone with whom the victim was intimate (26%), or another relative (3%); child molestations are most often committed by an acquaintance (40.1%), parents (33.4%), other family members (12.5%), or a boyfriend or girlfriend (1%).
		Contrary to popular perceptions, sex offenders do not necessarily commit only one type of offense.  Offenders may "cross over" from one type of sexual offense to another.  "[M]any rapists of adult women also rape children and . . .  many exhibitionists are also voyeurs and, given the opportunity, may progress to more aggressive behavior."  English, at 223-224.  For example of 561 male offenders studied, 51% assaulted multiple age groups, 20% assaulted both genders, and 23% of incest perpetrators also molested children outside the family.  These 561 offenders victimized 195,407 individuals with crimes ranging from child rape to obscene phone calls.  Id.
		Sexual assault takes a heavy toll on its victims.  The effects on victims are often brutal and long-lasting, and the period of recovery can be prolonged.  English, at 221.  Victims of childhood sexual assault often act out in school, disrupt classrooms, and may sexually involve other children in the school lavatory.  These victims’ lives are often encased in conspiracy and secrecy, and their families often suffer extreme emotional and financial burdens as a result of these assaults.  Hindman, J.  Just Before Dawn 4 (1989).  "Thus, apart from the substantial personal trauma caused to the victims of such crimes, sexual crimes against children exact heavy social costs as well."  Doe v. Poritz, 662 A.2d 367, 375 (N.J. 1995).  "Considering the tremendous physical and psychological impact sex crimes have upon the victims as well as their harmful societal effects, concerns of recidivism certainly warrant legislatures’ attention."  Femedeer v. Haun, 227 F.3d 1244, 1253 (10th Cir. 2000).

		This Court observed in Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), that sex offender registration has not traditionally or historically been regarded as punishment.  It is safe to say that no state enacted its sex offender registration or notification law with the intent to impose additional punishment on the offender, as "punishment" was construed by this Court in Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Many states explicitly stated in their statutes that the purpose of enacting the registration and notification laws was for public protection and to facilitate law enforcement investigation and apprehension of sex offenders.  See, e.g., Ala. Code, § 15-20-20.1; Or. Rev. Stat. § 181.602; Calif. Pen. Code § 290.  Other states did not include express intent language in their statutes, but the legislative histories of the bills leave no doubt as to the concerns about sex offender recidivism and public safety which prompted the legislation. See, e.g., People v. Adams, 581 N.E.2d 637 (Ill. App. 1991); Dean v. State, 60 S.W.3d 217 (Tx.App. 2001); State v. Pickens, 558 N.W.2d 396, 398 (Iowa 1997).
		Whether a statute is civil or criminal is a question of statutory interpretation.  Allen v. Illinois, 478 U.S. 364, 368, 92 L.Ed.2d 296, 106 S.Ct. 2988 (1986).  Nevertheless, the differences that exist between the states’  registration and notification laws are not significant for purposes of an ex post facto analysis, since even those laws which have certain punitive aspects serve important nonpunitive goals.  See Moore v. Avoyelles Corr. Ctr., 253 F.3d 870, 873 (5th Cir. 2001) [held, Louisiana’s notification law does not violate the Ex Post Facto Clause].
		This Court explained in Collins that the Ex Post Facto Clause does  not prohibit retroactive application of every change which alters the situation of a party to his disadvantage.  Collins, 497 U.S. at 50; and see Calif. Dept. of Corrections v. Morales, 514 U.S. 499, 131 L.Ed.2d 588, 115 S.Ct. 1597 (1995).  The only relevant category in determining whether it is ex post facto to apply sex offender registration and notification laws to sex offenders convicted before the operative date of such laws is whether they "change[] the punishment, and inflict[] a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. 386, 390 (1798).  "After Collins, the focus of the ex post facto inquiry is not whether a legislative change produces some ambiguous sort of ‘disadvantage’...but on whether any such change alters the definition of criminal conduct or increases the penalty by which the crime is punishable."  Morales, 514 U.S. at 506.  Since civil commitment of dangerous sex offenders has been held not to "affix culpability for prior criminal conduct" (Kansas v. Hendricks, 521 U.S. at 362), it is patent that regulatory statutes, intended to register sex offenders and notify the public about such offenders living freely in the community, do not increase the penalty for the underlying sex offense.
		In Kennedy v. Mendoza-Martinez, 372 U.S. at 168-169, this Court looked beyond the intent of the challenged law to determine  whether the statutory scheme was so punitive in either purpose or effect to transform what was clearly intended to be a civil remedy into a criminal penalty.  Factors were whether: (1) the sanction involved an affirmative disability or restraint; (2) it had historically been regarded as a punishment; (3) it came into play only on a finding of scienter; (4) its operation promoted the traditional aims of punishment--retribution and deterrence; (5) the behavior to which it applied was already a crime; (6) an alternative purpose to which it may rationally be connected was assignable for it; (7) it appeared excessive in relation to the alternative purpose assigned.  This Court later observed, however, that these factors are neither exhaustive nor dispositive (United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)), and in fact may be expected to conflict.  Hudson v. U.S., 522 U.S. 93, 101, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).
		The most important question under the intent-effects analysis is whether the law serves significant nonpunitive goals. United States v. Ursery, 518 U.S. 267, 290, 116 S.Ct. 1235, 135 L.Ed.2d 549 (1996).  Amici submit that more weight should be given to this factor than any other.  In fact, "the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose and effect."  Kennedy, 372 U.S. at 169;   Flemming v. Nestor, 363 U.S. 603, 617, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960). 
		In Hudson, this Court criticized its earlier opinion in United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), because it bypassed the question of whether a subsequently imposed penalty was criminal, and elevated one factor of Kennedy, i.e., whether the sanction was so grossly disproportionate to the harm caused as to constitute "punishment," to dispositive status.  Hudson, 522 U.S. at 101.  This Court also assigned error in Halper’s assessment of the "character of the actual sanction imposed," 490 U.S. at 447, finding the Court should have evaluated the statute on its face to determine whether it provided for what amounted to a criminal sanction.
		No state sex offender registration or notification law is intended to additionally punish the sex offender for the underlying crime, nor do such laws create criminal sanctions on their face.  The effects of such laws, which Respondents contend render them punitive, cannot overcome the important nonpunitive purposes for which they were enacted. The Ninth Circuit erred by placing disproportionate weight on the same factor that this Court criticized in its earlier opinion in Halper for elevating to dispositive status.

		Sex offender registration/notification laws do not create an affirmative disability or restraint even if they make it difficult for individual registrants to obtain housing or employment, or subject some offenders to embarrassment or even vigilante action.  Such statutes are regulatory, having no retributive purpose, but rather the legitimate nonpunitive purpose of ascertaining the whereabouts of those convicted of enumerated offenses.  
		This Court held that debarment from the banking profession did not render a civil sanction punitive or constitute an affirmative disability or restraint in Hudson, 522 U.S. at 102, because it was "certainly nothing approaching the ‘infamous punishment ’ of imprisonment." If debarment from an entire profession did not render a sanction punitive, then unauthorized discrimination in employment or housing by private persons against registrants does not create an affirmative disability or restraint.  The  means of accomplishing the regulatory purpose are not excessive.  
		The universal requirement of annual verification of addresses, and quarterly verification for those convicted of aggravated sex offenses, is not overly burdensome and is directly related to the public safety purpose of the law.   Requiring quarterly registration for certain offenders and long-term, even lifetime, registration is also supported by  research on recidivism.  Research indicates that immediately prior to committing an offense, recidivists’ compliance with treatment and other requirements deteriorates.  They tend to miss more and more appointments.  Hanson, Dynamic Predictors of Sexual Recidivism 1998-1, Solicitor General of Canada 22 (1998).8/  Logically, the failure to comply with registration requirements may indicate that an offender’s risk of reoffending has increased.  Quarterly, as opposed to annual, registration provides law enforcement with immediate notice that an offender is not complying with registration.  This permits law enforcement to locate the offender and assure such compliance.
		Whether individual registrants may encounter difficulty in obtaining housing or employment, or even suffer illegal vigilante action (an uncommon event), is not relevant to an analysis of whether the law is punitive. In any event, vigilante actions have been infrequent.  "The fact that violent incidents have been relatively rare may seem surprising given the media attention to these events." CSOM, Notification, at 13; 
and see  E.B. v. Verniero, 119 F.3d 1077, 1089-1090, 1104 (3d Cir. 1997) [vigilante action "relatively rare"].  Just as actual conditions of confinement cannot divest a facially valid statute of its civil label (Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001)), the unintended effect on an individual of a facially civil law, validly enacted for a public welfare purpose, cannot render it punitive.  In fact, for citizens who are not in the custody of the state, the right to personal security does not include the right to state protection from private violence. See DeShaney v. Winnebago County Dep't of Soc. Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). 
		The Otte court found that the sex offender’s duty to provide personal information, and the dissemination of address and employer information, contributed to creating an affirmative disability.  The information required, however,  is no more than necessary for effective public protection.  The dissemination of address information is not the disclosure of intimately personal data which implicates the Constitution’s right to privacy.9/ If the names of rape victims and juvenile offenders can be published, then a convicted sex offender should not be accorded a greater right to privacy.  Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) ["ascertaining and publishing the contents of public records are simply not within the reach of these kinds of privacy actions...."]; Smith v. Daily Mail, 443 U.S. 97, 61 L.Ed.2d 399, 99 S.Ct. 2667 (1979) [names of juvenile offenders not protected by Constitutional right to privacy from publication]. The right to privacy under the United States Constitution has been interpreted to apply to personal decisions involving marriage, procreation, contraception, family relationships, and child rearing and education.  Carey v. Population Services, Intern., 431 U.S. 678, 684-685, 52 L.Ed.2d 675, 97 S.Ct. 2010 (1977); Planned Parenthood v. Casey, 505 U.S. 833, 848, 120 L.Ed.2d 674, 112 S.Ct. 2791 (1992). ". . .Liberty implies the absence of arbitrary restraint, and not immunity from reasonable regulations and prohibitions imposed in the interests of the community." 16A Am. Jur.2d, Constitutional Law § 563, at 584.
		Today anyone can very likely locate, via the Internet, the address of any American they wish to find.  For example, the address of any person owning real property in America can be obtained, even if his address is unlisted in the local telephone directory.  Such websites as ussearch.com; google.com; anywho.com; dogpile.com; classmates.com; docusearch.com; and discreetresearch.com provide both free and paid information disclosing not just addresses and employment information, but a host of more potentially embarrassing information, such as paternity information, bankruptcies, divorces, lawsuits, and credit history.
		It is crucial to ensuring public safety that sex offenders not remain anonymous.  The general knowledge that registered sex offenders lived in their city would not have alerted the parents of Megan Kanka to the fact that a twice-convicted pedophile and two other convicted sex offenders resided just across the street.  See CSOM, Notification, at 3; E.B. v. Verniero, 119 F.3d at  1081.  Neither could the general information available in California on registered sex offenders have alerted the parents of young Michael Lyons, killed after kidnap, sodomy and torture, that a convicted pedophile was employed at a business across the street from their home.  People v. Rhoades, No. 98F00230 (Sacramento Sup. Ct.; automatic appeal pending).  
		Some sex offenders support community notification laws, stating that local knowledge of their past offenses helps in their effort to remain free of future offenses.  See www.calsexoffenders.net, a website by a convicted California sex offender who states that while registration and notification laws "may be burdensome,. . . they help us remember who we’ve been so we don’t become it again."  The states have a compelling interest in providing the public with specific information on the whereabouts of registered sex offenders.
		Court decisions can be found on the Internet, as can most major newspapers and other news publications.  Internet research would probably reveal the names of most registered sex offenders today.  While the Internet disseminates information worldwide, it is unlikely that persons living outside the area will have an interest in checking on the location of registered sex offenders in a certain jurisdiction.  For those who need to know, the Internet is by far the most effective means of obtaining such knowledge.  Before being shut down by the federal district court, the Connecticut website listing registered sex offenders received over three million "hits" in four and a half months. Doe v. Dept. of Public Safety, 271 F.3d at 44, n. 14. Efficiency in the delivery of information important to public safety should not be the excuse for its suppression.  Additionally, websites can be updated immediately, so changes in registrants’ status and whereabouts can be made in real time, helping ensure the accuracy of the sex offender registries.  Since there is no right to privacy with respect to one ’s criminal record, the ease of public access to that record should not be construed to create an affirmative disability or restraint. See Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); Paul v. Davis, 424 U.S. 693, 47 L.Ed.2d 405, 96 S.Ct. 1155 (1976).
		The Ninth Circuit also found that extending the registration period for failure to register created an affirmative disability.  While a few states extend the registration period when the offender is subsequently convicted for failure to register (see, e.g., 730 ILCS 150/10; Minn. Stat. § 243.166, subd. 6), the states can legitimately base the extension on the conclusion that an offender who wishes to hide his status and whereabouts is at a greater risk to reoffend than other offenders who have consistently complied with the registration law, and that a longer period of public disclosure is appropriate.  Those states which do not permit judicial determinations of rehabilitation to relieve registrants of the registration duty are likewise entitled to legislatively determine that such a law is necessary for public safety, in that judicial assessment of rehabilitation is particularly difficult as to sex offenders.  Neither is the sometimes lifetime registration obligation indicative of punitive intent, because the length of registration is directly related to a public safety purpose, based on studies showing recidivism risk for sex offenders persists over many years. 
		Finally, the Ninth Circuit criticized the Alaska requirement of lifetime registration for those convicted of "aggravated" sex offenses, finding that the lack of an individual determination of the risk of reoffense as to each offender created an affirmative disability or restraint under Kennedy.  However, the states are not constitutionally mandated to enact registration or notification laws requiring individual assessments of risk.  States must legislate in many areas based on general information regarding societal risk, e.g., revocation of drivers’ licenses after drunk driving convictions.  As this Court noted in Hendricks, the indefinite duration of civil confinement of sexually violent predators was not indicative of punitive intent because the length of confinement was linked to the purpose of commitment, just as lifetime sex offender registration and notification are linked to the purpose of the registration and notification laws.
		Some states’ registration and notification laws base the length of registration and type of notification on the nature of the underlying sex offense.  Others require additional factors to increase the frequency  of registration or the level of community notification.  The Otte court held that the Alaska Act was punitive because, among other things, it provides no opportunity for a registrant to prove that he no longer poses a risk of reoffending.  Otte, 259 F.3d at 993-994.  However, the Alaska legislature’s determination that prior convictions were a sufficient indicator of future risk is entitled to substantial deference. 
		In assessing whether prior convictions indicate a sufficient risk of future dangerousness, legislatures are afforded the widest latitude in drafting statutes.  Hendricks, 521 U.S. at 360.  The studies cited above demonstrate that convicted sex offenders pose a significant risk of reoffending.  Moreover, it is a risk that may not materialize in a criminal act for more than twenty years after the offender was released from custody.  While the risk posed by sex offenders might be further delineated through psychological evaluations and evidentiary hearings, a legislature may reasonably conclude that a conviction for a sex offense is a good indicator of dangerousness.
		Given the supporting studies, a legislature’s determination that a prior conviction would support registration is a decision well within its authority.   "The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness."  Jones v. United States, 463 U.S. 354, 364, 103 S.Ct. 3043, 3049, 77 L.Ed.2d 694 (1983); Hendricks, 521 U.S. at 358, 117 S.Ct. at 2080 ("[p]revious instances of violent behavior are an important indicator of future violent tendencies"), quoting Heller v. Doe, 509 U.S. 312, 323, 113 S.Ct. 2637, 2644, 125 L.Ed.2d 257 (1993).  Imposing reasonable limitations on the conduct of convicted felons based on their convictions is well within the legislature’s prerogative, particularly where this determination is supported by significant statistical research.  De Veau v. Braisted, 363 U.S. 144, 158-160, 80 S.Ct. 1146, 1153-54, 4 L.Ed.2d 1109 (1960).
		The fact that some states choose to do individual risk assessments, or are compelled by state constitutional law to conduct such assessments, does not mean that the federal Constitution requires all the states to enact similar laws.  In fact, "[o]ne of the most consistent predictors of recidivism has been a history of prior convictions for sexual offenses. . . ."  R. Karl Hanson, et al., "Long-Term Recidivism of Child Molesters", 61 J. of Consulting and Clinical Psychology 646.  Individual risk assessment may not necessarily be more predictive of the risk of  recidivism, because the validity of risk assessment as to a particular individual may often be uncertain. See Randy K. Otto, On the Ability of Mental Health Professionals to "Predict Dangerousness": A Commentary on Interpretation of the "Dangerousness" Literature, 18 Law & Psychol. Rev. 43, 45, 62-63 (1994) (noting that researchers in the 1970s began compiling data showing that the presumption that professionals could predict individual violent behavior was incorrect, but also noting that recent data showed "some" predictive ability).

		The second Kennedy factor does not support a finding that sex offender registration and notification statutes are punitive, since sex offender registration has never been historically regarded as punishment (Lambert, 355 U.S. at 229), and neither have statutes which disclose criminal conviction records to the public been regarded as punitive, since nondisclosure of one’s criminal record is not one of those personal rights which is "fundamental" or "implicit in the concept of ordered liberty." Whalen v. Roe, 429 U.S. 589; Paul v. Davis, 424 U.S. 693.

		The third Kennedy factor, scienter (372 U.S. at 168), is not implicated, because the states’ registration and notification statutes are triggered simply by the offender’s arrival and residence in a community. Although the Ninth Circuit  found that scienter was requisite under the Alaska law because the law did not address registration by those found not guilty by reason of insanity, the fact that a particular legislature has chosen not to regulate all classes of offenders (such as the criminally insane) is irrelevant to the scienter issue.  No particular intention on the part of the sex offender registrant is involved or relevant to registration, because registration and notification commence based solely on conviction for a designated sex offense.  As noted by this Court in Hudson, no scienter was required by the sanction imposed on those who violated the banking statute because the sanction applied without regard to the violator’s state of mind.  An earlier Ninth Circuit panel noted that the crime of failing to register as a sex offender constitutes a separate offense, and the fact that a prior sex offense conviction is an element of the "failure to register" offense is of no consequence to the scienter determination.  Russell v. Gregoire, 124 F.3d 1079, 1088-1089 (9th Cir. 1997).

		The fourth Kennedy factor is whether the statute promotes the traditional aims of punishment, retribution and deterrence. Sex offender registration and notification laws do not inflict retribution because they neither label the offender as more culpable than before (though his culpability may be more widely publicized), nor do they turn on a finding of scienter.  Russell, 124 F.3d at 1091. However, registration and notification may prevent future sex offenses.  Studies at this point are not conclusive because the laws are so new, but preliminary  research indicates that recidivism by Minnesota sex offenders released after notification began may be significantly reduced compared to recidivism by sex offenders released in 1992, prior to the enactment of Minnesota’s notification law.  State Survey, supra note 1.  Even if such laws have a deterrent effect, it should not negate the overall remedial or regulatory nature of the statutes, since their objective is in fact to protect innocents and prevent future offenses, by allowing potential victims access to the truth.  This Court has said that protecting the public and preventing crimes are the types of purposes it has found regulatory and not punitive.  DeVeau v. Braisted, 363 U.S. at 160.  Ursery declared that deterrence can serve both civil and criminal goals, and noted that the fact that a sanction may be tied to criminal activity alone is insufficient to render the sanction punitive. Ursery, 518 U.S. at 292; see Hendricks, 521 U.S. at 361-362.
		The Otte court held that the Alaska statute was retributive because it tied the length of the reporting period to the "extent of the wrongdoing, not...[to] the extent of the risk posed."  Otte, at 990. However, a legislature might reasonably determine that an offender who poses a risk of greater harm ought to register for a longer period that one who poses an equal risk of lesser harm.10/ 
		Additionally, as the Prentky and other studies show, long-term registration serves the remedial interest of public safety because sex offenders are at risk to reoffend for their entire lives.  According to Prentky, the failure rate for child molesters actually increases more than ten years after the offender has been released from custody.  Prentky, 651-653.  The Otte court’s conclusion that an offender’s risk of reoffending may subside is not borne out by the research.11/
		While prior convictions trigger the duty to register, this does not mean that registration is punishment for the conviction.  It is the underlying sex offense, proved beyond a reasonable doubt in the criminal action, that supports imposing the duty to register.  Jones, 463 U.S. at 364.  Nevertheless, the Otte court found that simply because the Alaska statute required registration by convicted sex offenders, it applied to criminal behavior and concomitantly favored a finding that the statute was punitive.  Otte, 259 F.3d at 991.   
		The Otte court distinguished the Alaska statute from a Utah statute reviewed in Femedeer, 227 F.3d 1244.  The Utah statute required registration by those who were civilly committed and those who were convicted of a sex offense.  The Otte court held that it was the inclusion of those subject to civil commitment that made the Utah law non-punitive under this prong of the Kennedy test, unlike the Alaska law.  However, a state might well determine that its civil commitment laws adequately protect society from those who have been committed.  
		In assessing this prong of the Kennedy test, Alaska’s declared purpose of providing public safety from sex offenders should be given deference.  The decision of Alaska, and other states, to rely on the underlying criminal determination in determining who is subject to registration and/or notification does not conflict with the remedial purpose.  In some circumstances, the reliance on a criminal conviction is an important element of distinguishing criminal from civil statutes.  Here, prior criminal conduct is considered, "Not to punish past misdeeds, but primarily … to predict future dangerousness."  Hendricks, 521 U.S at 362, 117 S.Ct. at 2082.

		The fifth and sixth factors considered in Kennedy are whether the behavior triggering the regulatory measures was criminal (yes), and whether an alternative purpose is assignable to the regulatory measures the states have undertaken (yes: public safety and facilitation of law enforcement investigation of sex crimes).  The seventh factor, whether the regulatory measure appears excessive in relation to the alternative purpose assigned, was overly weighted by the Ninth Circuit in analyzing the Alaska law.  Other regulatory sanctions have had harsh effects similar to the community's possible response to notification about sex offenders, and have been upheld.  See De Veau, 363 U.S. 144 (forbidding work as a union official); Hawker v. New York, 170U.S. 189, 42 L. Ed. 1002, 18 S. Ct. 573 (1898) (revocation of a medical license); Mahler v. Eby, 264 U.S. 32, 68 L. Ed. 549, 44 S. Ct. 283 (1924) (deportation); Flemming, 363 U.S. 603 (termination of Social Security benefits)). Moreover, "whether a sanction constitutes punishment is not determined from the defendant's  perspective, as even remedial sanctions carry the 'sting of punishment.'"  Department of Revenue v. Kurth Ranch, 511 U.S. 767, 777, n. 14, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994).
		The state legislatures legitimately enacted sex offender registration and notification laws based on two premises: (1) that the long-term effects on victims who are sexually assaulted have become a serious societal problem, and (2) that sex offender recidivism is a significant concern.  The registration of sex offenders, and notice to the public of their status and whereabouts, directly serves the state goals of reducing sexual assault by facilitating investigations of sex crimes and preventing recidivism. 
		The following examples of the effectiveness of notification law were taken from the California Department of Justice’s Reports to the California Legislature12/ on California’s Megan’s Law:  (1) A woman viewing the state’s sex offender registry on a CD-ROM at a  law enforcement agency recognized a high-risk offender as a man who had been involved with a local Little League for  years. She knew he did not live in the zip code area listed as his residence area. She notified local law enforcement, and investigation revealed he was in violation of the registration law and had molested at least eight boys. 1998 Report.  (2) A CD-ROM viewer recognized a serious sex offender with prior child molestation convictions as a bus driver who transported disabled children. After investigation, the driver was charged with molesting two disabled children.  1998 Report.  (3) A CD-ROM viewer recognized a neighbor, a serious sex offender, who had befriended her son.  After investigation, the offender was subsequently arrested for molesting the viewer’s son.  (4) Police distributed a flyer identifying a person as a high-risk sex offender. When the offender attempted to lure a 14-year-old girl into his car, asking her for directions, she recognized him from the flyer and refused the ride. The offender was arrested for violating parole by having contact with a minor. 1998 Report.  (5) Viewing the CD-ROM, a mother recognized her live-in boyfriend, who was listed as a registered child molester.  She asked him to move out to protect her children. 2000 Report.  (6) Viewing the CD-ROM, a day care operator saw that a neighbor of the day care center was a high-risk sex offender, and notified her employees.  An employee later saw the offender expose himself near the center.  Surveillance by law enforcement resulted in the offender’s arrest for indecent exposure and sex offenses in two other counties. 2001 Report.  (7) After local law enforcement distributed a flyer on a serious offender, neighbors recognized the offender, who had befriended local children, and discovered he had been taking them to a nearby wood for sex. He was convicted of sexually abusing three children.  2001 Report.
		An example of the registration law fulfilling its purpose was the case of People v. Guadalupe DeLeon (No. F017947, Cal. App. 1993), in which a registered sex offender with a prior rape conviction committed a series of increasingly violent sexual assaults upon women asleep in their homes at night.  In the final assault, the defendant knocked out the victim’s teeth, cutting his hand and leaving his own blood at the scene.  His rare blood type matched the blood type of one registered sex offender in the county, and subsequent investigation proved he was the serial rapist.
		American society is no longer the village model in which all those in the district are aware of the history of every individual member of the local population.  In our largely urban, mobile world, it was easy for sex offenders to remain anonymous before the enactment of sex offender notification laws.  While some argue anonymity is their right, hiding the past may facilitate and even enable offenders to perpetrate new sex offenses.  This Court should give significant weight to the fact that the registration and notification laws were enacted to serve important nonpunitive goals, based on appropriate decisions by state legislatures balancing the interests of individual sex offenders with societal risks.  Amici submit that Respondents have not demonstrated by the clearest proof that either of Alaska’s registration or notification laws is punitive in purpose or effect.

		For the foregoing reasons, Amici respectfully request that the decision of the Ninth Circuit Court of Appeals be reversed.

Dated:  May 22, 2002

   Respectfully submitted,

KEN SALAZAR				BILL LOCKYER
Attorney General of  Colorado   		Attorney General of the 
							State of California
							ROBERT R. ANDERSON
						Chief Assistant Attorney
						General

MATTHEW S. HOLMAN			JO GRAVES
Assistant Attorney General			Senior Assistant Attorney
							General
Counsel of Record				STAN CROSS, Supervising 								Deputy Attorney General

							JANET E. NEELEY
							Deputy Attorney General
							Counsel of Record
							Attorneys for Amicus Curiae 
							State of   California ex rel. 
							Bill	Lockyer,
							Attorney General 

JEN:MH:lmp