In U.S. v. W.B.H. the defendant was convicted of federal drug conspiracy. His sentence included a condition of his supervised release that required him to register as a sex offender under Sex Offender Registration and Notification Act (SORNA) because he had a 20 year old Alabama conviction for first degree rape. The rape conviction occurred in 1987, well before enactment of SORNA in 2006. He was 18 at the time of the rape and given 3 years probation under Alabama law, which at the time did not require that he register as a sex offender. W.B.G. challenged the supervised release condition under the Ex Post Facto Clause of the Constitution, which forbids Congress and the states from enacting “any law which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.”
Supreme Court case law holds that the Ex Post Facto bar applies only to criminal laws and not to civil regulations. The 11th Circuit turned to Smith v. Doe, 538 U.S. 84 (2003) the leading case in determining whether a statute is criminal or civil and non-punitive.
The facts in Doe are similar to the facts in W.B.G.’s case. Doe involved a defendant convicted of a sex offense who was required to register as a sex offender under the Alaska Sex Offender Reporting Act. There Doe made an Ex Post Facto challenge of the Alaska Sex Offender law because it was enacted after the sex offense conviction. The Supreme Court found it did not violate the Constitution because the primary purpose was not to impose a civil and regulatory scheme and not punishment. The Doe analysis first requires the court to determine if the intent of the legislation was to impose punishment. If so, the inquiry ends. The 11th Circuit determined that the statute has a civil purpose. Congress intended to enact a civil regulatory scheme whose purpose was to protect society from sex offenders and to keep law enforcement informed about sex offenders in their jurisdiction.
Second, the court must determine if the “statutory scheme is so punitive, either in purpose or effect as to negate” Congress’ intention to make it a civil regulation.
Doe listed five guideposts to help determine if the regulatory scheme’s effect is punitive:
1. Whether the regulatory regime has bee regarded in our national history and tradition as punishment. Because the information is public, dissemination of truthful information is in furtherance of a legitimate governmental objective.
2. Whether the regulation imposes any affirmative restraint or disability. The registrants are not subject to any physical restraints.
3. Whether SORNA promotes traditional aims of punishment, i.e. retribution and deterrence. The 11th Circuit found any deterrent effect is not enough to justify finding the Act punitive.
4. Whether SORNA has a rational relationship to a non-punitive purpose. Comparing it to the Alaska statute in Doe, the 11th Circuit found a legitimate non-punitive purpose of promoting public safety.
5. Whether the regulatory scheme is excessive with respect to its non-punitive purpose. Compared to the similar Alaska sex offense reporting regulation in Doe, which the Supreme Court found, was not excessive.