specially concurring.
The majority concludes that, because the application of amended ORS 137.225 does not subject defendant to any additional punishment than that prescribed at the time of his conviction and accordingly, it does not violate the prohibitions against ex post facto laws. I agree with the majority’s result, but not its analysis.
The Ex Post Facto Clauses of the state and federal constitutions apply to penal statutes that retroactively increase the punishment for criminal acts. Collins v. Youngblood, 497 US _, 110 S Ct 2715, 111 L Ed 2d 30, 38, 39 (1990) (citing Colder v. Bull, 3 US (3 Dall) 386, 390, 1 L Ed 648 (1798)); see Perkey v. Psychiatric Security Review Board, 65 Or App 259, 262, 670 P2d 1061 (1983) (citing Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977)). In Trop v. Dulles, 356 US 86, 96, 78 S Ct 590, 2 L Ed 2d 630 (1958), a plurality of the Court said:
“In deciding whether a law is penal [for purposes of the constitutional prohibitions against ex post facto laws], this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment — that is to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the statute. The point may be illustrated by the situation of an ordinary felon. A per son who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect *15banks, both sanctions were imposed for the purpose of protecting bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground for the eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise.” (Footnotes omitted; emphasis supplied.)
Amended ORS 137.225 has incidental penal effects. Contrary to the assertions of the majority, it “punishes” the defendants that fall within its purview. In Cummings v. Missouri, 71 US (4 Wall) 277, 18 L Ed 356 (1867), the United States Supreme Court defined “punishment” for ex post facto purposes when it held unconstitutional the requirement that a Catholic priest take an oath of loyalty under a provision of the Missouri Constitution. The oath required the affiants to deny that they had ever manifested by act or word any adherence to the cause of enemies of the United States. Another provision declared that any person who was incapable of taking the oath was disqualified from holding certain offices and trusts, which included priests and ministers; yet another provision prescribed criminal penalties for persons who held or exercised those offices or trusts without taking the oath.
The Court reviewed what disabilities were considered to be punishment within the prohibition against ex post facto laws. It said:
“The disabilities created by the Constitution of Missouri must be regarded as penalties — they constitute punishment. We do not agree with the counsel of Missouri that ‘to punish one is to deprive him of life, liberty or property, and to take from him anything less than these is no punishment at all.’ * * * The deprivation of any rights, civil or political, previously enjoyed, may be punishment; the circumstances attending and the causes of the deprivation determining this fact. * * *
tc% * * * *
“The theory upon which our political institutions rest is, that all men have certain inalienable rights— that among these are life, liberty and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all *16positions, are alike open to everyone, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.” 71 US at 362. (Emphasis supplied.)
Because the provisions of the Missouri Constitution deprived the state’s citizens of the right to hold certain offices and pursue certain vocations without having taken an expurgatory oath regarding acts that were not punishable when they were committed, the Court concluded that the provisions violated the prohibition against ex post facto laws.
Under the holding in Cummings, the changes wrought bythe 1989 amendments to ORS 137.225 punish the individuals affected thereby. Before 1989, defendant would have been entitled to have his conviction set aside after the lapse of three years and compliance with the sentence of the court. See State v. Langan, 301 Or 1, 718 P2d 719 (1986). Now, under ORS 137.225, as amended, he no longer has the opportunity to avoid the legal disabilities and losses that attach as a result of a public record of conviction. The disabilities that flow from a criminal conviction are many.1 For instance, after a felony conviction, possession of a firearm is unlawful, ORS 166.270, disqualification as a guardian or conservator can occur, ORS 126.050, credit union certificates of approval may not be issued, ORS 723.014, and occupational and professional licenses may be restricted. See, e.g., ORS 670.280; ORS 673.700; ORS 678.111(1)(a); ORS 679.060; ORS 677.190; ORS 726.075. Those disabilities, and others, disadvantage defendant and enhance the quantum of punishment for a crime committed before the enactment of amended ORS 137.225. See Weaver v. Graham, 450 US 24, 35, 101 S Ct 960, 67 L Ed 2d 17 (1981); Rask v. Martinez, 876 F2d 1496 (11th Cir), cert den 110 S Ct 543 (1989). Clearly, that effect is punitive.
However, the amendments to ORS 137.225 were enacted for a nonpenal purpose, and their primary effect is nonpenal. The bill was proposed by the Department of Justice. Its representative testified before the Senate Committee *17on Judiciary:
“The purpose of the bill is to guarantee that a criminal record of child abuse will be available to programs or individuals responsible for caring for children. Presently, a juvenile or adult convicted of sexual molestation or criminally mistreating a two-year-old, could have his record expunged. There would be no record of a conviction for such a crime. If that individual later applied to be a day care provider, foster parent, Fairview aide, nursing attendant, teacher’s aide, Boy Scout leader, or YMCA counselor, there would be no available record showing that he had been convicted of a child abuse offense. The program would not be aware that a conviction for sexual molestation or criminal mistreatment had occured. [sic] That individual could be employed or licensed to care for young children.” Exhibit 5, Senate Committee on Judiciary, April 24, 1989, p 1 (testimony of Deborah Wills, Assistant Attorney General in charge of the Family Enforcement Section).
Although amended ORS 137.225 has both penal and nonpenal effects, its purpose exempts it from being classified as an ex post facto law. Although I disagree with the majority that the disabilities imposed are not additional punishment, I would reach the same result, because the purpose of the statute is nonpenal.
The majority’s statement that “the social stigma that may attach to an individual with a criminal record is inflicted by the citizenry and the community” is inaccurate. 109 Or App at 13.