IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69621-1-1
(Consolidated with
Respondent, No. 69622-0-1)
v. DIVISION ONE
CHRISTOPHER M. SMITH, UNPUBLISHED
Appellant. FILED: August 18, 2014
Cox, J. — A law violates the ex post facto clauses of the state and federal
constitutions if it (1) is substantive, not procedural; (2) is retrospective; and (3)
disadvantages the person affected by altering the standard of punishment that
existed under the prior law.1 Christopher Smith appeals, claiming that
"[subjecting [him] to the requirements and penalties of the sex offender
registration and community notification law" violates the ex post facto clauses of
the state and federal constitutions. Because he fails to prove beyond a
reasonable doubt that the registration requirements resulting from his conviction
are punitive, we affirm.
1 See State v. Ward. 123 Wn.2d 488, 498-99, 869 P.2d 1062 (1994).
No. 69621-1-1 (Consolidated with No. 69622-0-l)/2
In March 1998, Smith pleaded guilty to one count of possession of
depictions of a minor engaged in sexually explicit conduct under former RCW
9.68A.070 (1990). This felony conviction was based on acts he committed in
1997. At that time, this crime was not classified as a "sex offense" requiring
registration as a sex offender.2
In 2006, the legislature amended the statute defining "sex offense" to
include the crime to which Smith pleaded guilty in 1998: possession of depictions
of a minor engaged in sexually explicit conduct.3
Upon his release in 2007, the Department of Corrections notified Smith in
writing about the sex offender registration requirements for his conviction. Smith
registered with the Snohomish County Sheriff's Office as a convicted sex
offender and began complying with the requirements.
In May 2009, Smith reported that he was homeless. Because of this
status, the statute required him to report weekly to the Snohomish County
Sheriff's Office.4 From May 2009 to October 2009, Smith complied with this
requirement. But from October 2009 to October 2010, he failed to report in
person as required.
In October 2010, Smith registered with a new address in Marysville. On
March 20, 2011, police conducted a registration check at this residence. Two
2 See former RCW 9A.44.130(6) (1997); former RCW 9.94A.030(33)
(1997).
3 Laws 2006, ch. 139, §5.
4 See former RCW 9A.44.130(6)(b) (2006).
No. 69621-1-1 (Consolidated with No. 69622-0-l)/3
residents at the address told police that Smith no longer resided there and had
been gone for several days. As of April 14, 2011, Smith had not updated his
address with the sheriff's office.
The State charged Smith with two counts of failure to register as a sex
offender. One count was based on Smith's failure to report in person to the
county sheriff's office from October 2009 to October 2010.5 The other count was
based on his failure to provide timely written notice to the sheriff's office after
leaving his residence in March 2011.6
Smith agreed to a bench trial on stipulated documentary evidence for both
charges. The trial court found Smith guilty as charged.
Smith appeals.
EX POST FACTO
Smith argues that the sex offender registration and community protection
law, as applied to him, violates the ex post facto clauses of both the state and
federal constitutions because it is impermissibly punitive. We hold that he has
failed to prove beyond a reasonable doubt that the law is punitive. Accordingly,
we disagree with his claim that the registration requirements violate the ex post
facto provisions of the state and federal constitutions.
"The ex post facto clauses of the federal and state constitutions forbid the
State from enacting any law which imposes punishment for an act which was not
punishable when committed or increases the quantum of punishment annexed to
5 Clerk's Papers at 285 (citing RCW 9A.44.130).
6 Id at 33 (citing RCW 9A.44.132).
No. 69621-1-1 (Consolidated with No. 69622-0-l)/4
the crime when it was committed."7 The ex post facto analysis is the same under
the state constitution as it is under the federal constitution.8
"'A law violates the ex post facto clause if it: (1) is substantive, as opposed
to merely procedural; (2) is retrospective (applies to events which occurred
before its enactment); and (3) disadvantages the person affected by it'"9
The "sole determination of whether a law is 'disadvantageous' is whether
the law alters the standard of punishment which existed under prior law."10
Accordingly, the ex post facto prohibition applies only to laws inflicting criminal
punishment.11
This court reviews de novo constitutional issues.12 A statute is presumed
constitutional, and the party challenging it has the burden to prove beyond a
reasonable doubt that it is unconstitutional.13
Washington's Community Protection Act sets forth provisions related to
sex offender registration and community notification.14 Generally, convicted sex
7 Ward, 123Wn.2dat496.
8 See id.
9]± at 498 (quoting In re Pers. Restraint of Powell. 117 Wn.2d 175, 185,
814 P.2d 635 (1991)).
10ld
11 id at 499.
12 State v. Enquist. 163 Wn. App. 41, 45, 256 P.3d 1277 (2011), review
denied, 173 Wn.2d 1008 (2012).
13 Ward. 123Wn.2dat496.
14SeeRCW9A.44.130-.141.
No. 69621-1-1 (Consolidated with No. 69622-0-l)/5
offenders are required to register with the appropriate county sheriff within a
certain timeframe upon release.15 The offender must provide specific
information, including the following: (1) name and aliases used; (2) complete
residential address or, if the person lacks a fixed residence, where he or she
plans to stay; (3) date and place of birth; (4) place of employment; (5) crime for
which convicted; (6) date and place of conviction; (7) social security number; (8)
photograph; and (9) fingerprints.16 The community notification provision permits
dissemination of certain information to the public.17
In State v. Ward, our supreme court rejected the argument that the
Community Protection Act's sex offender registration requirement violates the ex
post facto clause.18 There, the supreme court assumed without deciding that the
statute is substantive rather than procedural.19 Additionally, it concluded that the
statute is retrospective.20 But the court held that the 1991 version of the statute
did not violate the ex post facto clauses of the state and federal constitutions
because it did not alter the standard of punishment.21
15SeeRCW9A.44.130.
16RCW9A.44.130(2)(a).
17 See RCW 4.24.550.
18 123 Wn.2d 488, 510-11, 869 P.2d 1062 (1994).
19 Id at 498.
20 id
21 Id. at 498-99.
No. 69621-1-1 (Consolidated with No. 69622-0-l)/6
In reaching this conclusion, the supreme court first looked to the
legislature's purpose in adopting the law.22 It stated, "When it enacted the
statute, the Legislature unequivocally stated that the State's policy is to 'assist
local law enforcement agencies' efforts to protect their communities by
regulating sex offenders by requiring sex offenders to register with local law
enforcement agencies as provided in [RCW 9A.44.130].'"23
Next, the supreme court considered "whether the actual effect of the
statute [was] so punitive as to negate the Legislature's regulatory intent."24 To
assist with this determination, the court turned to the factors listed in Kennedy v.
Mendoza-Martinez, a United States Supreme Court case.25 Those factors are:
[1] Whether the sanction involves an affirmative disability or
restraint, [2] whether it has historically been regarded as a
punishment, [3] whether it comes into play only on a finding of
scienter, [4] whether its operation will promote the traditional aims
of punishment—retribution and deterrence, [5] whether the
behavior to which it applies is already a crime, [6] whether an
alternative purpose to which it may rationally be connected is
assignable for it, and [7] whether it appears excessive in relation to
the alternative purpose assigned .. . .[26]
The Ward court noted that while the legislature's regulatory intent was
clear, the Mendoza-Martinez factors also weighed in favor of finding that the
22 Id at 499.
23 id (alteration in original) (quoting Laws of 1990, ch. 3, § 401).
24 id
25 id (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9
L. Ed. 2d 644 (1963)).
26 Id (quoting Mendoza-Martinez, 372 U.S. at 168-69).
No. 69621-1-1 (Consolidated with No. 69622-0-l)/7
statute is regulatory and not punitive.27 The supreme court relied on four factors
in particular—specifically, factors one, two, four, and seven.28
For the first factor, the Ward court concluded that registration, and a
limited disclosure of registrant information, did not amount to an affirmative
disability or restraint.29 It noted that the registration information was already on
file, the physical act of registration created no disability, and sex offenders were
free to move from community to community.30 Additionally, it concluded that the
dissemination of registrant information did not impose additional punishment
because the legislature placed limits on the disclosure of registration information
to the public.31
For the second factor, it concluded that registration has not traditionally or
historically been regarded as punishment.32 It noted that registration "is a
traditional governmental method of making available relevant and necessary
27 id at 500.
28 See id at 500-11.
29 id at 500-07.
30 id at 500-01.
31 id at 502-07.
32 Id. at 507.
No. 69621-1-1 (Consolidated with No. 69622-0-l)/8
information to law enforcement agencies."33 It expressly rejected a California
court's description of sex offender registration as an "'ignominious badge.'"34
For the fourth factor, the Ward court concluded that the statute did not
primarily promote the traditional aims of punishment.35 Rather, the court noted
that the legislature's primary intent is to aid law enforcement agencies' efforts to
protect their communities.36 The court stated, "Even if a secondary effect of
registration is to deter future crimes in our communities, we decline to hold that
such positive effects are punitive in nature."37
For the seventh factor, the supreme court concluded that the registration
statute is not excessive in relation to its non-punitive purpose.38 It stated, "[T]he
Legislature has spoken clearly that public interest demands that law enforcement
agencies have relevant and necessary information about sex offenders residing
in their communities."39
Since Ward was decided in 1994, the sex offender registration and
community notification provisions have undergone changes. One such change
33
Id.
34 Id at 507-08 (quoting In re Birch, 10 Cal. 3d 314, 322, 110 Cal. Rptr.
212, 515P.2d 12(1973)).
35 id at 508.
36 id
37 id
38 id
39 Id. at 509.
No. 69621-1-1 (Consolidated with No. 69622-0-l)/9
to the registration provision was the addition of transient offender requirements in
1999.40 In 2006, these required post-release sex offenders who lack a fixed
residence to report weekly, in person, to the sheriff of the county where he or she
was registered.41 The statute required the weekly report to be on a day specified
by the county sheriff's office, to occur during normal business hours, and allowed
the sheriff's office to require the person to list the locations where he stayed
during the last seven days.42 The statute now requires the offender to keep an
"accurate accounting" of where he or she stays during the week and provide it to
the sheriff upon request.43
In State v. Enquist, Division Two analyzed the 2006 transient offender
requirements when reviewing an ex post facto challenge to the statute.44 There,
Gerald Enquist claimed that the transient offender registration requirements
would interfere with his ability to hold a job.45
Division Two rejected his argument that the statute retroactively imposes
punishment by requiring people without a fixed residence to report weekly, in
40 Laws of 1999, ch. 3, § 402; Laws of 1999, 1st Spec. Sess., ch. 6, § 2.
41 Former RCW 9A.44.130(6)(b) (2006).
42 id
43RCW9A.44.130(5)(b).
44 163 Wn. App. 41, 45, 256 P.3d 1277 (2011), review denied, 173 Wn.2d
1008(2012).
45
Id.
No. 69621-1-1 (Consolidated with No. 69622-0-l)/10
person, to the county sheriff's office.46 With little analysis, it concluded that
Enquist failed to prove beyond a reasonable doubt that the transient registration
provision violates the ex post facto clauses.47 Specifically, it stated:
Although Enquist testified that weekly reporting was inconvenient,
inconvenience alone does not make the statute punitive. Enquist
has not demonstrated that the registration requirements constitute
punishment. As the Ward court concluded, "[although a registrant
may be burdened by registration, such burdens are an incident of
the underlying conviction and are not punitive for purposes of ex
post facto analysis."[48]
Notably, the supreme court denied review of this case in 2012.49 There is no
other published decision in Washington addressing the transient offender
requirements.
Along with the addition of transient offender requirements, other important
amendments to the act include changes to the community notification provisions.
The most significant of these changes was the implementation of a statewide
registered sex offender website in 2002.50 This website is available to the
public.51 The statute requires that the website contain information about all level
III and level II registered sex offenders, as well as level I registered sex offenders
46 id
47 id at 49.
48 id (alteration in original) (citation omitted) (quoting Ward, 123 Wn.2d at
510-11).
49 See 173 Wn.2d 1008, 268 P.3d 941 (2012).
50 Laws 2002, ch. 118, §1.
51 See http://ml.waspc.org.
10
No. 69621-1-1 (Consolidated with No. 69622-0-l)/11
during the time they are out of compliance with registration requirements.52 The
amount of information released depends on the offender's classification level, but
it may include the offender's name, relevant criminal history, address by hundred
block, physical description, and a photograph.53 The website provides mapping
capabilities and allows members of the public to search for registered sex
offenders by county, city, zip code, last name, and address.54
We can find no published case in Washington that addresses these
changes to the notification provisions. In Russell v. Greqoire, the Ninth Circuit
determined that Washington's community notification provisions did not violate
the ex post facto clause.55 But this decision was in 1997, before many of the
significant changes, especially those regarding the website, took effect.56
Here, Smith provides an overview of the history of the Community
Protection Act and the changes to the registration and notification provisions that
have occurred since Ward. But he fails to articulate either which of the post-
Ward changes directly apply to him or which provisions he is specifically
challenging. The factual record is not developed, and Smith does not point to
any evidence detailing the effects of the registration requirements or community
notification provisions as they apply to him. He provides no information about the
52RCW4.24.550(5)(a).
53 See id. at (5)(a)(i)-(ii).
54 id at (5)(a)(i).
55 124 F.3d 1079, 1094 (9th Cir. 1997).
56 Id
11
No. 69621-1-1 (Consolidated with No. 69622-0-l)/12
specific requirements he was subjected to or about the specific information that
was disseminated to the public in his case. Nor does he argue how the
requirements or dissemination of information specifically disadvantages him.
Rather, he cites the current version of the statute and argues generally that this
court should "re-examine" the supreme court's conclusions in Ward in light of
these changes to the law.
The supreme court, not this court, is the proper court to "re-examine"
Ward. Rather, our task is to examine these changes identified by Smith and
determine whether the analysis in Ward controls this one. In doing so, we
conclude that Smith fails to establish why we should deviate from Ward.
As an initial note, both parties briefed the current versions of the act.
Accordingly, we analyze Smith's challenges to the current version,
notwithstanding the fact that his convictions arose under previous versions of the
act.
We begin our analysis by assuming, as in Ward, that the sex offender
registration and community notification provisions are substantive, not
procedural. We further assume that these requirements, which were enacted
after the acts for which Smith was convicted, apply retroactively. Thus, the
primary question for us to decide is whether the act is punitive. In deciding this
question, we follow the lead of Ward.
As the Ward court noted, the Legislature "unequivocally stated that the
State's policy is to 'assist local law enforcement agencies' efforts to protecttheir
communities by regulating sex offenders by requiring sex offenders to register
12
No. 69621-1-1 (Consolidated with No. 69622-0-l)/13
with local law enforcement agencies . .. .'"57 This legislative intent remains the
same.
Moreover, Smith fails to show that the effects of the statute are punitive
under the four Mendoza-Martinez factors addressed by Ward. Smith goes
through these four factors—factors one, two, four, and seven. We address each
of these four factors in turn.
For the first factor, whether the sanction involves an affirmative disability
or restraint, Smith argues generally that "[t]he burdens imposed by the sex
offender registration and community notification statute are significantly more
onerous and disabling than in 1994 . . . ."58
He identifies the following changes to the statute: (1) Offenders who
change their address must notify the sheriff by certified mail or in person within
three days, rather than by written notice within 10 days;59 (2) Offenders who
move to a new county must register with the new county sheriff within three days
of moving and provide the county sheriff with whom they last registered, by
certified mail or in person, signed written notice of the change of address;60 (3)
Low-risk offenders must verify their current residence by responding to annual
certified mail inquiries and high-risk offenders by responding to quarterly
57 Ward, 123 Wn.2d at 499 (quoting Laws of 1990, ch. 3, § 401).
58 Appellant's Opening Brief at 20.
59 id at 21 (citing former RCW 9A.44.130(3) (1990), RCW
9A.44.130(4)(a)).
60 id at 21-22 (citing RCW 9A.44.130(4)(b)).
13
No. 69621-1-1 (Consolidated with No. 69622-0-l)/14
inquiries;61 (4) Homeless offenders must report weekly in person to the sheriff's
office and keep an accounting of where he or she stays during the week;62 (5)
The penalties for failing to comply with the Act's requirements are harsher;63 and
(6) The dissemination of information to the public is much broader in scope.64
As we previously noted, Smith does not specify which changes directly
applied to him. But assuming for purposes of analysis that they all did, Smith
fails to show that these requirements are punitive.
As the Ward court noted, "Sex offenders are free to move within their
community or from one community to another, provided they comply with the
statute's registration requirements."65 Additionally it commented, "It is
inconceivable that filling out a short form with eight blanks creates an affirmative
disability. Registration alone imposes burdens of little, if any, significance."66
And it concluded, "Although a registrant may be burdened by registration, such
burdens are an incident of the underlying conviction and are not punitive for
purposes of ex post facto analysis."67
61 id at 22 (citing RCW 9A.44.135)).
62 id (citing RCW 9A.44.130(5)(b)).
63 id (citing former 9A.44.130(6) (1990), RCW 9A.44.132(b)).
64 See id at 23 (citing RCW 4.24.550(5)).
65 Ward, 123Wn.2dat501.
66 id
67 id at 510-11.
14
No. 69621-1-1 (Consolidated with No. 69622-0-l)/15
The first three changes that Smith identifies—requiring offenders to notify
the respective county sheriffs sooner after moving, requiring offenders to report a
move within three days, and requiring offenders to respond to mailing inquiries—
appear to be nothing more than burdens of his underlying conviction under Ward.
Moreover, there is nothing in the record to suggest that any of these
requirements prevented Smith from moving within his community or from one
community to another. And there is nothing to indicate that it was difficult for
Smith to comply with any of the requirements. For example, there is no evidence
that Smith was not able to register within the proscribed timeframes or by the
methods specified in the statute. Smith does not show that these requirements
are punitive.
The fourth change that Smith points to centers on the requirements for
transient offenders. These requirements are indeed more burdensome, as they
require frequent reporting and disclosure of more information, such as an
offender's weekly whereabouts. There is no question that these requirements
involve more than merely "filling out a short form with eight blanks."68
But the fact that the requirements are more burdensome does not
necessarily mean they are punitive. As the Enquist court observed when
examining the transient offender provisions, although "weekly reporting was
inconvenient, inconvenience alone does not make the statute punitive."69
Division Two saw no reason to deviate from Ward's analysis, and it held that
68 See Ward, 123 Wn.2d at 501.
69 Enquist, 163 Wn. App. at 49.
15
No. 69621-1-1 (Consolidated with No. 69622-0-l)/16
Enquist failed to prove beyond a reasonable doubt that the requirements
constituted punishment.70 The supreme court chose not to disturb that case
when it denied review in 2012.
Given this history, we conclude that Smith fails to show why this court
should deviate from Ward and Enquist. Smith fails to show beyond a reasonable
doubt that this weekly reporting requirement, while more burdensome, is punitive
as applied to him. He does not point to any evidence that the weekly reporting
requirement interfered with his ability to obtain employment, or that he was
substantially inconvenienced by this requirement in any way.
Smith argues generally that other courts around the country "have
concluded that statutory provisions similar to Washington's are akin to probation"
and are therefore punitive and impose significant restraints.71 But he makes no
attempt to compare the statutory schemes in the cases he identifies to the
Community Protection Act in Washington. And despite Smith's bald assertion
that they are "similar," in at least two cases, there appear to be substantial
differences.
For example, in one case cited by Smith, the statute that the court found
to be punitive required offenders to disclose highly personal information including
e-mail addresses, computer log-in names, and information about vehicles used.72
70
Id.
71 Appellant's Opening Brief at 26 (citing Wallace v. State, 905 N.E.2d
371, 380 (Ind. 2009); Doe v. Dep't of Pub. Safety &Corr. Servs., 430 Md. 535,
562, 62 A.3d 123 (Md. 2013); State v. Letalien, 985 A.2d 4, 18 (Me. 2009)).
72 See Dep't of Pub. Safety & Corr. Servs.. 430 Md. at 562.
16
No. 69621-1-1 (Consolidated with No. 69622-0-l)/17
In another case, the statute permitted in-home personal visitation, and required
offenders to carry valid identification at all times and inform law enforcement of
their plans to travel for more than 72 hours.73 Further, in both of these cases, the
court looked to the all of the statutory restrictions and obligations when they
concluded that the statutes had the same effect as placing the petitioner on
parole.74
In any event, it is the supreme court's decision in Ward that controls here,
not what other courts in other states have done in reaching contrary results.
Smith's reliance on these extra jurisdictional cases is not persuasive.
For the fifth change, Smith argues that "[t]he threat of prosecution for
offenders who do not comply with the Act's complex and ever-changing
requirements is also a significant restraint."75 But he fails to explain how this
restrained him, and he fails to cite any authority to support his assertion.
Accordingly, we need not consider this argument any further.76
Smith makes a strong argument that changes that have occurred to the
notification provisions of the statute—specifically, that the greater dissemination
of information to the public is a type of restraint. As we discussed earlier in this
73
Wallace. 905 N.E.2d at 379-80.
74 See, e.g., Dep't of Pub. Safety & Corr. Servs., 430 Md. at 561-62;
Wallace, 905 N.E.2d at 380.
75 Appellant's Opening Brief at 22.
76 See Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992).
17
No. 69621-1-1 (Consolidated with No. 69622-0-l)/18
opinion, the notification provisions of the statute have expanded in scope since
Ward. The most significant is the implementation of the sex offender website.
The Ward court was sensitive to these concerns when it analyzed the
community notification provisions in 1994. In concluding that "the appropriate
dissemination of relevant and necessary information does not constitute
punishment," the Ward court focused on a number of factors.77 It held,
[B]ecause the Legislature has limited the disclosure of registration
information to the public, the statutory registration scheme does not
impose additional punishment on registrants. The Legislature
placed significant limits on (1) whether an agency may disclose
registrant information, (2) what the agency may disclose, and (3)
where it may disclose the information. The statute regulating
disclosure, RCW 4.24.550, provides that "[p]ublic agencies are
authorized to release relevant and necessary information regarding
sex offenders to the public when the release of the information is
necessary for public protection."[78]
The Ward court also focused on the fact that the legislature intended public
agencies to disseminate warnings "under limited circumstances" and that a public
agency must have some evidence of dangerousness in the future in order to
release registrant information.79
Smith argues that "[t]hese limitations on the public disclosure of sensitive
information about offenders which were written into the original statute and
deemed so important by the Washington Supreme Court have practically
77 Ward, 123Wn.2dat507.
78 id at 502 (alteration in original) (quoting former RCW 4.24.550(1)
(1990)).
79 id at 502-03.
18
No. 69621-1-1 (Consolidated with No. 69622-0-l)/19
become a nullity."80 He argues, "Now, every level II and level III offender's
name, relevant criminal convictions, address by hundred block, physical
description, photograph, risk level classification, and compliance status is
available to anyone anywhere who has access to the Internet, regardless of
whether the information is 'necessary' or 'relevant.'"81 He points out that the
same information about level I offenders is available if that person is not currently
in compliance with the reporting requirements.82
Smith notes that Ward stated, "It is only where the criminal history record
contains non-conviction data, or where the criminal justice agency discloses that
[a] person is a registered sex offender, that dissemination will have the potential
for creating an additional restraint."83 And he argues that "[t]his potential for
additional restraint is now a substantial reality."[84]
Notwithstanding this argument, we are not convinced the result under
Ward should be any different in this case. In Smith v. Doe, a United States
Supreme Court case, the court stated, "If the disability or restraint is minor and
indirect, its effects are unlikely to be punitive."85 There, the court rejected an
argument that the dissemination of information imposed a restraint by making
80 Appellant's Opening Brief at 24-25.
81 Jd at 25.
82 id
83 id at 23 (citing Ward. 123 Wn.2d at 501).
84 ]d
85 538 U.S. 84, 100, 123 S. Ct. 1140, 155 L Ed. 2d 164 (2003).
19
No. 69621-1-1 (Consolidated with No. 69622-0-l)/20
offenders unemployable.86 The court noted that the record in that case contained
"no evidence that the [Alaska Sex Offender Registration] Act has led to
substantial occupational or housing disadvantages for former sex offenders that
would not have otherwise occurred through the use of routine background
checks by employers and landlords."87
Likewise, here, there is no evidence in the record to show that because of
the notification provisions, Smith suffered any occupational, housing or other
disadvantages. We need not speculate on whether the documentation of such
information would change the result.
Smith argues that other courts have found that "aggressive public
notification" of sex offender crimes imposes significant affirmative disabilities on
offenders. For this argument he relies on Wallace v. State, a case from the
Supreme Court of Indiana, and Doe v. Pataki, a case from the Second Circuit.88
These cases provide some support for his assertion. In Wallace, the court
noted that "the practical effect of this dissemination is that it often subjects
offenders to 'vigilante justice' which may include lost employment opportunities,
housing discrimination, threats, and violence."89 Similarly, in Pataki, the Second
Circuit acknowledged the negative consequences of community notification,
86 Id
87 id
88 Appellant's Opening Brief at 26-27 (citing Wallace v. State. 905 N.E.2d
371, 380 (Ind. 2009); Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997)).
89 Wallace. 905 N.E.2d at 380.
20
No. 69621-1-1 (Consolidated with No. 69622-0-l)/21
including "public shunning, picketing, press vigils, ostracism, loss of employment,
and eviction, to threats of violence, physical attacks, and arson."90
But, as previously stated in this opinion, Smith fails to present any
evidence or argument about the consequences of the dissemination of his
information. And he does not point to anything to suggest that he suffered the
type of harm contemplated by Wallace or Pataki.
Moreover, in Pataki, even after acknowledging these potential
consequences, the court concluded that these "detrimental consequences" do
not "suffice to transform the regulatory measure of community notification into
punishment.91 Like in Pataki, Washington's legislature "evidences a clear
regulatory intentto limit the exchange of relevant information to the general
public to those circumstances which present a threatto public safety."92 Smith
fails to show that the potential for negative consequences transforms this
regulatory measure into punishment.
To summarize, Smith fails to demonstrate that any of the changes he
identifies imposed a "significant affirmative disability and restraint." Accordingly,
he fails to show why this court should deviate from Ward's analysis of the first
factor of Mendoza-Martinez.
For the second factor, whether the sanction has historically been regarded
as punishment, Smith argues that this court should re-examine Ward's
90 Pataki, 120 F.3d at 1279.
91 id
92 Ward, 123Wn.2dat502.
21
No. 69621-1-1 (Consolidated with No. 69622-0-l)/22
conclusion "[g]iven the development of the law since Ward was decided and the
current regime permitting wide and indiscriminate dissemination of personal
information about offenders to the public even when not 'relevant and
necessary.'"93
To support his argument, Smith points to two recent cases, Wallace, and
Doe v. Department of Public Safety and Correctional Services, a case from the
Court of Appeals of Maryland.94 He does not provide any in depth discussion or
analysis about these cases, but rather, relies on them for the proposition that
"[o]ther courts have said the wide public dissemination of personal information
about sex offenders is akin to the traditional punishment of shaming."95
In Wallace, the court noted that "the Act exposes registrants to profound
humiliation and community-wide ostracism" and concluded that dissemination
resembles the punishment of shaming.96 Similarly, Doe noted "the dissemination
of Petitioner's information pursuant to the sex offender registration statute, is
tantamount to the historical punishment of shaming."97
But even though Wallace and Doe support Smith's argument, our
supreme court in Ward disagreed with the rationale underlying these cases when
93 Appellant's Opening Brief at 27-28.
94 Appellant's Opening Brief at 27-28 (citing Wallace. 905 N.E.2d at 380;
Doe v. Dep't of Pub. Safety & Corr. Servs., 430 Md. 535, 562, 62 A.3d 123 (Md.
2013)).
95 Id at 28.
96 Wallace, 905 N.E.2d at 380.
97 Dep't of Pub. Safety & Corr. Servs., 430 Md. at 564.
22
No. 69621-1-1 (Consolidated with No. 69622-0-l)/23
it expressly rejected the argument that public stigma is a punitive effect of sex
offender registration.98 It stated, "Public stigma arises not as a result of
registration nor as a result of release to the general public of information
concerning a conviction. Any 'badge of infamy' stigma that may exist arises from
private reactions to the crime by members of the general public."99
Further, although Ward did not consider dissemination of information on
the Internet, not all courts have held that this type of dissemination is
punishment. For example, the United State Supreme Court's opinion in Smith
provides guidance.100 As previously discussed, the Supreme Court analyzed the
Alaska Sex Offender Registration Act, which contained a registration requirement
and a notification system.101 Like Washington, Alaska makes information
available to the public on the Internet.102
The Supreme Court concluded that the notification provisions did not
resemble traditional forms of punishment.103 It stated, "Our system does not treat
dissemination of truthful information in furtherance of a legitimate governmental
objective as punishment."104 It commented that, in contrast to colonial shaming,
98 Ward, 123Wn.2dat506.
"id
100 Smith, 538 U.S. 84.
101 id at 89-90.
102 Id at 91.
103 id at 98.
104 ,d_
23
No. 69621-1-1 (Consolidated with No. 69622-0-l)/24
"the State does not make the publicity and the resulting stigma an integral part of
the objective of the regulatory scheme."105 Importantly, it stated:
The fact that Alaska posts the information on the Internet
does not alter our conclusion. It must be acknowledged that notice
of a criminal conviction subjects the offender to public shame, the
humiliation increasing in proportion to the extent of the publicity.
And the geographic reach of the Internet is greater than anything
which could have been designed in colonial times. These facts do
not render Internet notification punitive. The purpose and the
principal effect of notification are to inform the public for its own
safety, not to humiliate the offender. Widespread public access is
necessary for the efficacy of the scheme, and the attendant
humiliation is but a collateral consequence of a valid regulation.
The State's Web site does not provide the public with means
to shame the offender by, say, posting comments underneath his
record. An individual seeking the information must take the initial
step of going to the Department of Public Safety's Web site,
proceed to the sex offender registry, and then look up the desired
information. The process is more analogous to a visit to an official
archive of criminal records than it is to a scheme forcing an
offender to appear in public with some visible badge of past
criminality. The Internet makes the document search more
efficient, cost effective, and convenient for Alaska's citizenry.11061
Accordingly, although Wallace and Doe concluded that the dissemination
of information was punitive, the Ward court disagreed that public stigma is a
punitive effect of the statute. This court is bound by Ward. Further, even though
Ward did not examine the current scope of information disseminated via the
Internet, the Supreme Court's opinion in Smith reached similar conclusions even
after considering the impact of the Internet. Given these considerations, Smith
105 Id at 99.
106 Id.
24
No. 69621-1-1 (Consolidated with No. 69622-0-l)/25
fails to demonstrate why this court should deviate from Ward's analysis on the
second factor.
For the fourth factor, whether the law's operation promotes the traditional
aims of punishment—retribution and deterrence, Smith argues that "other courts
have found this factor weighs in favor of finding the law to be punitive because
the deterrent and retributive effects of the law can be substantial."107 He quotes
Wallace, which stated, "[l]t strains credulity to suppose that the Act's deterrent
effect is not substantial, or that the Act does not promote 'community
condemnation of the offender,' both of which are included in the traditional aims
of punishment."108
But, as Smith acknowledges, Ward expressly reached the opposite
conclusion. The Ward court stated, "Even if a secondary effect of registration is
to deter future crimes in our communities, we decline to hold that such positive
effects are punitive in nature."109 This court is bound by Ward's decision on this
factor.
For the seventh factor, whether the law is excessive in relation to the
alternative purposes assigned, Smith argues that this court must re-examine
Ward's conclusion that the act's effects were not excessive in relation to its
nonpunitive purpose.
107 Appellant's Opening Brief at 29.
108 Wallace, 905 N.E.2d at 382 (citation omitted) (quoting Abercrombie v.
State, 441 N.E.2d 442, 444 (Ind. 1982)).
109 Ward. 123Wn.2dat508.
25
No. 69621-1-1 (Consolidated with No. 69622-0-l)/26
He argues, "Other courts have concluded any nonpunitive purpose of their
registration and notification statutes was outweighed by their punitive effects."110
But the legislature's clear regulatory purpose remains the same. And, for the
reasons discussed previously, Smith fails to provide any persuasive argument
why this court should deviate from Ward on this factor.
We conclude, given the supreme court's extensive analysis in Ward and
its rejection of the underlying rationale in the cases cited by Smith, that he has
not met his burden to prove beyond a reasonable doubt that the Community
Protection Act is unconstitutional.
We affirm the judgment and sentence. /* __
WE CONCUR:
iec/M—; („.\],
CO
CO
110 Appellant's Opening Brief at 30.
26