UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30101
MICHAEL D. MOORE,
Petitioner-Appellant,
VERSUS
AVOYELLES CORRECTIONAL CENTER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
June 25, 2001
Before DUHÉ, PARKER, Circuit Judges, and Lindsay1, District Judge.
DUHÉ, Circuit Judge:
In this case, Appellant, a sex offender, contends that
Louisiana violated the Constitution’s proscription of ex post facto
laws by subjecting him to a sex offender neighborhood notification
law enacted after his conviction and sentencing for indecent
behavior with a juvenile. For the following reasons, we affirm.
BACKGROUND
In 1994, Appellant Michael D. Moore pleaded guilty in
Louisiana state court to indecent behavior with a juvenile. The
court sentenced him to five years’ imprisonment, then suspended his
sentence and placed him on probation. A condition of Moore’s
1
District Judge of the Northern District of Texas, sitting by
designation.
probation was that
he register with law enforcers in the parish of his residence per
the Louisiana sex offender registration statute, La. R.S. 15:542.
In 1995, the Louisiana Legislature amended the sex offender
registration statute. As amended, the statute requires a sex
offender placed on probation to notify his neighbors of his
residence and his sex offender status. In 1996, a Louisiana court
revoked Moore’s probation and made executory his sentence because
Moore failed to comply with the amended statute’s neighborhood
notification requirement. Moore successfully appealed the
revocation to the Louisiana Third Circuit Court of Appeals.
Louisiana then appealed to the Louisiana Supreme Court. The
Louisiana Supreme Court reinstated the revocation of Moore’s
probation.
Moore subsequently filed a petition for writ of habeas corpus,
arguing that, as applied to him, Louisiana’s neighborhood
notification requirement was a constitutionally prohibited ex post
facto law. Citing cases from the Second, Third, and Ninth Circuits
holding that sex offender neighborhood notification requirements do
not constitute “punishment” violating the constitutional
proscription of ex post facto laws, the magistrate judge
recommended dismissal of Moore’s habeas petition. The district
court adopted the magistrate judge’s recommendation and dismissed
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Moore’s habeas petition. Moore appeals.
DISCUSSION
Louisiana’s sex offender neighborhood notification law does
not violate the Constitution’s proscription of ex post facto laws.
Article I, § 10 of the Constitution prohibits 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.” Weaver v. Graham, 450 U.S.
24, 28 (1981) (citations omitted). Courts apply an “intent-
effects” test to determine whether a law imposes “punishment”
violating the Ex Post Facto Clause. The “intent-effects” test has
courts ask whether 1) the legislature intended the sanction to be
punitive, and 2) the sanction is “so punitive” in effect as to
prevent courts from legitimately viewing it as regulatory or civil
in nature. United States v. Ursery, 518 U.S. 267, 288 (1996).
The Louisiana sex offender neighborhood notification law
passes this test. Three Circuits have held that sex offender
neighborhood notification laws like Louisiana’s do not, according
to the “intent-effects” test, impose “punishment” violating the Ex
Post Facto Clause. See Russell v. Gregoire, 124 F.3d 1079 (9th
Cir. 1997); Roe v. Office of Adult Probation, 125 F.3d 47 (2d Cir.
1997); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997); E.B. v.
Verniero, 119 F.3d 1077 (3rd Cir. 1997). No Circuit has held that
a sex offender neighborhood notification law like Louisiana’s does
impose “punishment” violating the Ex Post Facto Clause. Moore
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argues that Louisiana’s law differs fundamentally from those
reviewed by the Second, Third, and Ninth Circuits. We do not think
that it does.
The intent of Louisiana’s law is not punitive. We discern a
statute’s intent by looking first at the words of the statute. If
its words are clear and unambiguous, “then our interpretative
journey comes to an end, and we apply that plain meaning to the
facts before us.” United States v. Barlow, 41 F.3d 935, 942 (5th
Cir. 1994). The text of the Louisiana law clearly and
unambiguously limns the law’s intent. The text – which mimics
almost verbatim the language of the Washington law the Ninth
Circuit affirmed against a similar constitutional challenge in
Russell – clearly indicates that the legislature intended the
notification provisions to prevent future attacks by recidivist sex
offenders. See La. R.S. 15:540 (declaring that the statute aims to
“protect the public from sex offenders, sexually violent predators,
and child predators”); Russell, 124 F.3d at 1090 (holding that
Washington’s sex offender neighborhood notification law, which “is
tailored to help the community protect itself from sexual predators
under the guidance of law enforcement, not to punish sex
offenders,” serves a remedial purpose). That the Louisiana law may
deter as well as remedy does not mean its intent is punitive. See
Russell, 124 F.3d at 1090 (“...the law may have a deterrent purpose
as well as a remedial one. Neither of these purposes would result
in an ex post facto violation, however. There is no indication
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that the legislature intended to punish already-convicted offenders
(rather than merely deterring them or preventing future crimes)”).
Nor does the statute’s structure point up a punitive intent.
Appellant contends that because the Louisiana law does not
condition neighborhood notification on carefully calibrated,
individualized determinations of dangerousness, we should look past
the legislature’s stated nonpunitive intent and scrutinize
critically its “objective intent.” Appellant argues that the
objective intent of the Louisiana law is punitive, and that his
subjection to the law, therefore, violates the Ex Post Facto
Clause. We disagree. “A perfect fit between ends and means” need
not exist for the legislature’s objective intent to be other than
punitive: “If a reasonable legislator motivated solely by the
declared remedial goals could have believed the means chosen were
justified by those goals, then an objective observer would have no
basis for perceiving a punitive purpose in the adoption of those
means.” Verniero, 119 F.3d at 1098. A reasonable legislator could
believe that the means employed by the Louisiana statute would help
prevent future attacks by recidivist sex offenders. Moore has
not marshaled the “clearest proof” that the Louisiana law is “so
punitive in form and effect as to render [it] criminal despite [the
legislature’s] intent to the contrary.” Ursery, 518 U.S. at 290.
“The most significant question under this stage of the [‘intent-
effects’] analysis” is whether the law “while perhaps having
certain punitive aspects, serve[s] important nonpunitive goals.”
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Russell, 124 F.3d at 1091 (quoting Ursery, 518 U.S. at 290). A law
serving nonpunitive goals “is not punishment, even though it may
bear harshly on one affected.” Flemming v. Nestor, 363 U.S. 603,
614 (1960).2 The Louisiana law serves the same important
nonpunitive goals that the Washington law upheld by the Ninth
Circuit does: “alerting the community to the presence of sexual
predators...and giving guidance to the community to allow it to
avert new and tragic sexual offenses.” Russell, 124 F.3d at 1091.
It, accordingly, is not unconstitutionally punitive.3
2
See also Doe, 120 F.3d at 1279 (“The parties have stipulated
to a number of anecdotes concerning the effects that notification
has had upon registered offenders in New York and in three other
states with similar notification laws -- New Jersey, Washington,
and California....The stipulation describes numerous instances in
which sex offenders have suffered harm in the aftermath of
notification -- ranging from public shunning, picketing, press
vigils, ostracism, loss of employment, and eviction, to threats of
violence, physical attacks and arson. Relying in part on these
episodes, the District Court...concluded that ‘the consequences of
[community notification] are unlimited’ and that the stigma created
by the Act ‘pervades into every aspect of an offender’s
life.’...Although we do not doubt that the Act has had unfortunate
consequences for many subject to its operation, we do not agree
that these detrimental consequences suffice to transform the
regulatory measure of community notification into punishment”);
Russell, 124 F.3d at 1092 (“Moreover,...whether a sanction
constitutes punishment is not determined from the defendant’s
perspective, as even remedial sanctions carry...the sting of
punishment”) (citations omitted).
3
We reach this holding mindful of State v. Bishop, 686 So.2d
1053 (La. Ct. App. 1996). Bishop held that the registration
provisions of La. R.S. 15:542 violated the Ex Post Facto Clause.
Because Bishop’s two-sentence treatment of the ex post facto issue
is conclusory, it does not persuade us. See id. at 1055
(“Concerning the merits of defendant’s appeal, we note the trial
court erred in requiring defendant to register as a sex offender
under the provisions of LSA-R.S. 15:542 that were not in effect at
the time the offense was committed. This violates the
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CONCLUSION
Because the Louisiana sex offender neighborhood notification
law is not unconstitutionally punitive either in intent or effect,
we affirm.
AFFIRMED.
constitutional prohibition on ex post facto application of laws”).
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