[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 15-10958

____________________

MICHAEL A. MCGUIRE, 

Plaintiff-Appellant

Cross Appellee,

versus

STEVEN T. MARSHALL, 

DERRICK CUNNINGHAM,

JOHN RICHARDSON,

Defendants-Appellees

Cross Appellants,

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CITY OF MONTGOMERY, 

et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:11-cv-01027-WKW-CSC

____________________

Before JILL PRYOR, ED CARNES, and RIPPLE,

∗

Circuit Judges.

PER CURIAM:

Plaintiff Michael McGuire is required to register as a sex 

offender under the Alabama Sex Offender Registration and 

Community Notification Act (“ASORCNA” or the “Act”), Ala. 

Code § 15-20A-1 et seq. For as long as he lives in Alabama, Mr. 

McGuire must report in person each quarter to law enforcement. 

ASORCNA also subjects individuals, like Mr. McGuire, who are 

required to register as sex offenders (“registrants”) to a variety of 

other restrictions. A registrant generally cannot live or work within 

∗

Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh 

Circuit, sitting by designation.

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2,000 feet of a school or childcare center.1 A registrant who is

homeless must report in person each week to provide law 

enforcement with updated information. And a registrant must 

notify law enforcement before traveling away from his residence 

for three or more consecutive days. In addition, when a registrant 

moves to a new home, the Act requires law enforcement to mail 

flyers to the registrant’s neighbors informing them of the 

registrant’s status as a sex offender. 

In this lawsuit, Mr. McGuire sued the Alabama Attorney 

General and others, claiming that some provisions of ASORCNA

impose retroactive punishment in violation of the Constitution’s 

Ex Post Facto Clause. U.S. Const. art. I, § 10, cl. 1. After a bench 

trial, the district court entered judgment against Mr. McGuire, 

concluding that the retroactive application of these provisions did 

not amount to punishment. After careful review, we agree with the 

district court. Accordingly, we affirm in part and vacate and 

remand in part.2

In Part I, we discuss the factual background and procedural 

history of Mr. McGuire’s challenge to ASORCNA. In Part II, we 

walk through ASORCNA’s relevant provisions. In Part III, we 

identify the applicable standard of review. In Part IV, we address 

1 ASORCNA includes some exceptions to the employment and residency 

restrictions. See infra n.12.

2

We vacate and remand in part because some of Mr. McGuire’s challenges are 

now moot. See infra Section IV.

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mootness. In Part V, we set forth the “intent-effects” framework 

used to determine whether the Ex Post Facto Clause prohibits a 

law’s retroactive application. In Part VI, we apply this framework 

to analyze whether the Ex Post Facto Clause bars the retroactive 

application of the challenged provisions.

I. FACTUAL BACKGROUND 

A. Factual History 

In 1986, Michael McGuire was convicted in Colorado of: (1) 

first-degree sexual assault (rape) of his girlfriend “through the 

actual application of physical force and physical violence” using a 

knife “to cause submission”; (2) second-degree assault by causing 

and attempting to cause bodily injury “by means of a deadly 

weapon, to-wit: a knife and wine bottle”; and (3) menacing by 

placing another “in fear of imminent serious bodily injury.” At the 

time of the crime, both Mr. McGuire and his girlfriend were 30 

years old. Mr. McGuire served three years in prison and completed 

one year of parole. After his release from prison, Mr. McGuire 

spent much of the next 20 years working as a hair stylist and jazz 

musician in the Washington, D.C. area. During that time, he met 

a woman with whom he entered a common-law marriage in 2001. 

In 2010, Mr. McGuire and his wife decided to move to 

Montgomery, Alabama, to live with and assist his elderly mother.

Upon arriving in Montgomery, Mr. McGuire registered as a sex 

offender. He learned that he could not live with his mother because 

her home was too close to a childcare center. 

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Mr. McGuire looked for a compliant home. He asked local 

law enforcement about the suitability of dozens of homes for rent 

but was told that ASORCNA prevented him from living at any of 

those addresses. He and his wife stayed at a motel until their money 

ran out. The couple briefly stayed with Mr. McGuire’s brother. But 

when his brother’s minor children returned from a vacation, Mr. 

McGuire had to move out because ASORCNA prevented him from 

staying overnight with minors present. Unable to find housing, Mr. 

McGuire began living beneath an interstate overpass. He spent his 

days at the home where his wife lived and his nights underneath 

the interstate. Later he did find compliant housing. See infra n.20.

Upon returning to Montgomery, Mr. McGuire also faced 

difficulties finding a job. The district court found that ASORCNA’s 

employment restrictions prevented him from accepting or 

applying for a number of jobs, including music-related 

engagements. The court noted that he occasionally performed as a 

musician at a venue in Montgomery that is more than 2,000 feet 

from a school or childcare center.

Before filing this lawsuit, Mr. McGuire began receiving 

Social Security disability benefit payments and has continued to 

receive them since then. He testified that he started receiving those 

disability benefits after he had confined himself to his house for 

four years due to agoraphobia and after he had what he describes 

as a “psychotic break” and “was diagnosed as schizophrenic.” He 

also receives non-service-related benefit payments from the 

Veterans Administration for the same mental disabilities. 

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When Mr. McGuire was asked during the bench trial if he 

was “completely unable to work,” he testified: “I can’t really 

answer that question because I –– I don’t –– I haven’t been in a 

work environment for a while, so I don’t know what my reactions 

would be, due to my schizophrenia. I don’t know if I could –– if I 

could function correctly on a job, but I’m willing to find out.”3

3 Federal regulations permit the payment of social security disability benefits 

only when a person’s disabilities render him unable to perform “any

substantial gainful activity.” 20 C.F.R. § 404.1505(a); see also id. (explaining 

that a person is disabled when he has an impairment that meets or equals “the 

listing for a finding of disability”); 20 C.F.R., pt. 404, subpt. P, app. 1, pt. A2, 

§§ 12.03 (listing schizophrenia as a qualifying disability), 12.06 (listing 

agoraphobia as a qualifying disability). “The regulations define ‘substantial 

gainful activity’ as work that involves significant mental and physical activities 

and that is the kind of work that is usually done for pay or profit.” Johnson v. 

Sullivan, 929 F.2d 596, 597 (11th Cir. 1991) (citing 20 C.F.R. § 404.1572). In 

determining whether work is substantial and gainful, a variety of factors are 

considered, such as “the time spent in the work; quality of the performance; 

whether the worker is self-employed; the need for special conditions or 

supervision; use of experience, skills and responsibilities; and whether the 

worker contributes substantially to the operation of the business.” Id. (citing 

20 C.F.R. § 404.1573); see also 20 C.F.R. § 404.1574(b) (an employed person 

earning more than a certain monthly income is generally considered to be 

engaging in substantial gainful activity). The Social Security Administration’s 

and the Veteran Administration’s determinations that Mr. McGuire was 

disabled because of his mental health conditions are not necessarily

inconsistent with his performing either occasional work as a musician (as he, 

in fact, did) or limited part-time work (as he testified that he wanted to do).

See Johnson, 929 F.2d at 597; U.S. Dep’t of Veterans Affs., Individual 

Unemployability Fact Sheet (2018), 

https://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/IU.p

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During the time that he was homeless, Mr. McGuire had to 

register in person each week. He was required to report in person 

each week to both the Montgomery County Sheriff’s Office and 

the Montgomery City Police Department.4

B. Procedural Background 

Mr. McGuire filed this lawsuit naming the Attorney General 

of Alabama as defendant.5 As relevant to this appeal, he challenged 

portions of ASORCNA as unconstitutional ex post facto laws.

After a bench trial, the district court entered detailed 

findings of fact and conclusions of law. In the findings of fact, the 

court described the difficulties that Mr. McGuire faced in trying to 

find housing and work outside of ASORCNA’s exclusion zones. It 

also addressed the effect the residency and employment 

restrictions had on other registrants in Montgomery. The court 

found that these two restrictions made approximately 80 percent 

of the City of Montgomery’s housing stock and 85 percent of its 

df (stating that a veteran may receive disability benefits at a 100% rate when 

he is unable to “maintain[] substantial gainful employment”).

4 Since that time, ASORCNA has been amended, and homeless registrants are 

no longer subject to dual reporting requirements with the county and the city. 

See 2015 Ala. Laws 463; Ala. Code § 15-20A-12(b).

5 Mr. McGuire also named as defendants the City of Montgomery, 

Montgomery’s Chief of Police, Montgomery’s Mayor, Montgomery County’s 

Sheriff, and the Director of the Alabama Department of Public Safety. For

convenience, in discussing the defendants we refer only to the Attorney 

General, who represents the positions of all the defendants.

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jobs off limits to registrants. But many registrants were able to find 

housing and jobs in Montgomery nonetheless. Of the 430 

registrants who lived or worked in the city, the court found only 

three were homeless.6 And approximately 50 percent of these

registrants had jobs. Although this meant that roughly half of the 

Montgomery registrants lacked jobs, the court noted that this 

number included some registrants who were not actively seeking 

employment.7 

6 The record also contains evidence about the number of homeless registrants 

in Montgomery County, which encompasses the City of Montgomery. 

Looking at those registrants who were registered with the County only, the 

district court found that there were about 70 additional registrants, none of 

whom was homeless. Considering the total number of registrants in both the 

city and the remainder of the county, only three of 500, or six-tenths of one 

percent of the registrants, were homeless.

7 The court made no findings of fact about the effect of the residency and 

employment restrictions on registrants in communities outside of

Montgomery County. The record contains limited evidence about that. One 

of Mr. McGuire’s experts opined that the residency and employment 

restrictions likely would have a similar effect in Alabama’s other largest

cities—Birmingham, Hoover, Huntsville, Mobile, and Tuscaloosa. The expert 

explained that there was a direct correlation between a city’s population 

density and the proportion of the city that was covered by exclusion zones. 

Because these other cities had similar population densities to Montgomery, he 

expected that the residency and employment restrictions would impact

registrants in those communities similarly. Mr. McGuire offered no other 

evidence addressing the effect of the residency and employment restrictions 

on registrants living in any other part of Alabama, even though ASORCNA 

applies statewide to the 577 cities, towns, and Census Designated Places 

(CDPs) in Alabama and the 66 counties other than Montgomery. Instead, he 

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The court’s conclusions of law addressed the merits of Mr. 

McGuire’s ex post facto claims. The court explained that to prevail 

Mr. McGuire had to establish either that the legislature intended 

ASORCNA to impose punishment or that the challenged 

restrictions were sufficiently punitive in purpose or effect to 

overcome the legislature’s nonpunitive intent. The court found 

that in enacting ASORCNA the Alabama legislature expressly

intended to create a civil regulatory scheme, not to impose 

punishment. For most of the challenged restrictions, the district 

court concluded that Mr. McGuire failed to carry his burden of 

demonstrating that the restrictions were so punitive in purpose or 

effect that the legislature’s nonpunitive intent was overridden. 

There were two exceptions: ASORCNA’s dual reporting 

provisions, which required homeless registrants living in cities to 

report to both municipal and county law enforcement, and its 

travel permit requirement, which mandated that registrants living 

in cities obtain permission from both municipal and county law 

enforcement before traveling outside the area. The court 

determined that these two restrictions were so punitive in purpose 

or effect that the legislature’s stated intent to create a civil 

regulation was negated. The district court declared the retroactive 

application of these two provisions unenforceable under the Ex 

Post Facto Clause. 

presented evidence about only a single city where half of the registrants have 

jobs and more than 99 percent of them have housing. 

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Both Mr. McGuire and the Attorney General appealed parts 

of the district court’s judgment. While this appeal was pending, the 

Alabama legislature amended ASORCNA. It removed the travel 

permit requirement and clarified that registrants simply needed to 

notify law enforcement before traveling. See 2017 Ala. Laws 414. It 

also modified the dual reporting requirements. Registrants who 

lived in cities no longer needed to report to both city and county 

law enforcement officers if they were homeless or planned to 

travel. See 2015 Ala. Laws 463.

In addition, the State changed how it implemented 

ASORCNA’s requirement that a registrant carry a driver’s license 

or state-issued identification card reflecting his status as a sex 

offender. At the time the district court ruled, the Alabama Law 

Enforcement Agency (“ALEA”) implemented this requirement by 

issuing to registrants driver’s licenses or identification cards with 

the label “CRIMINAL SEX OFFENDER” appearing in red letters 

on the face of the license or card. In a different lawsuit, a group of 

registrants challenged the labeling requirement under the First 

Amendment. The district court in that case declared that the 

identification requirement as implemented by ALEA was 

unconstitutional. See Doe v. Marshall, 367 F. Supp. 3d 1310, 1339

(M.D. Ala. 2019). After that ruling, ALEA changed the designation 

it used on licenses and identification cards by replacing the words 

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“CRIMINAL SEX OFFENDER” with a code. Since then, ALEA has 

issued to registrants new driver’s licenses and identification cards.8

II. ASORCNA’S REGULATION OF SEX OFFENDERS 

We now discuss the relevant restrictions that ASORCNA in 

its current form imposes on sex offenders in Alabama.9 These 

measures include: requiring in-person quarterly registration; 

providing direct notification to the public when a registrant lives 

nearby; barring registrants from living, working, or volunteering

within 2,000 feet of schools or childcare centers; requiring

homeless registrants10 to report to law enforcement once a week; 

and compelling registrants to notify law enforcement before 

traveling.

8 We take judicial notice of the district court’s order and judgment in Doe v. 

Marshall as well as ALEA’s change in policy. See Cunningham v. Dist. Att’y’s 

Off. for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010); United States v. 

Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (noting that we may take judicial 

notice of district courts’ records). 

9 When a challenged statute has been amended, we “review the judgment of 

the district court in light of the law as it now stands.” Naturist Soc’y, Inc. v. 

Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992) (alteration adopted) (internal 

quotation marks omitted).

10 ASORCNA defines “homeless” as “[t]he state of lacking a fixed residence.” 

Ala. Code § 15-20A-4(7). Applying the statutory language, we use the term to 

refer to registrants who lack a fixed residence.

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A. Registration and Direct Community Notification 

ASORCNA requires adult sex offenders,11 individuals who 

were age 18 or older when they committed a crime defined under 

Alabama law as a sex offense, to register with law enforcement.

Ala. Code §§ 15-20A-4(1), 15-20A-10. Adult sex offenders are 

subject to ASORCNA for life.12 Id. § 15-20A-3(b). The Act went into 

effect on July 1, 2011, 2011 Ala. Laws 640 § 52, but its provisions 

apply to persons convicted prior to this effective date. See Ala. 

Code § 15-20A-3(a) (explaining that ASORCNA applies to all “adult 

sex offender[s] . . . without regard to when his or her crime or 

11 Alabama imposes a separate set of restrictions on individuals who were not 

yet 18 at the time of their sex offense. See Ala. Code §§ 15-20A-4(11), 15-20A26 to -34. Because Mr. McGuire committed his offense as an adult, we have no 

occasion to address the restrictions that Alabama imposes on juvenile sex 

offenders.

12 Some classes of registrants may be excused from ASORCNA’s restrictions.

Under the so-called “Romeo and Juliet” exception, a state court may excuse 

an individual convicted of a sex offense from complying with ASORCNA if the 

court finds that the sex offense did not involve force and was a crime only 

because of the victim’s age, the victim was at least 13 years old at the time of 

the offense, and the registrant was less than five years older than the victim.

Ala. Code § 15-20A-24(b), (i). Alabama also allows registrants to petition for 

relief on a number of other grounds: relief from the employment restriction if 

the offender was not convicted of certain serious sex crimes and poses little 

risk of committing a future sex crime; relief from the residency restriction if 

the offender is seriously ill or disabled; and relief from a registration period of 

life for juvenile offenders. See id. §§ 15-20A-23, 15-20A-25, 15-20A-34.

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crimes were committed or his or her duty to register arose”). Thus, 

it has retroactive application for those persons.

ASORCNA requires registrants to report in person to law 

enforcement on a quarterly basis. Id. § 15-20A-10(f). A registrant, 

like Mr. McGuire, who lives in a city has a dual reporting 

requirement, meaning he13 must register each quarter both with 

his county sheriff and with his municipality’s chief of police. See id.

§§ 15-20A-4(12), 15-20A-10(f). Each time a registrant reports he 

must provide, among other things, information about where he is 

living, working, or attending school.14 Id. § 15-20A-7(a). He also 

must notify law enforcement when his registration information 

changes. Id. § 15-20A-10(e)(1). A person who knowingly fails to 

register or otherwise knowingly violates the reporting requirement 

may be imprisoned for up to 10 years. Id. §§ 13A-5-6(a)(3), 15-20A7(f), 15-20A-10(j).

The Alabama legislature imposed the reporting requirement 

to promote public safety. It explained that reporting creates 

“constant contact between sex offenders and law enforcement, 

providing law enforcement with priceless tools to aid them in their 

investigations including obtaining information for identifying, 

13 We refer to registrants using male pronouns for simplicity’s sake. Of course, 

sex offenders of all genders must comply with ASORCNA.

14 Unless they have already been collected and have not been altered, a 

registrant must provide (1) a photograph, (2) fingerprints, (3) a DNA sample, 

(4) a copy of his identification card, and (5) a copy of his passport or 

immigration documents. Ala. Code § 15-20A-7(b).

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monitoring, and tracking sex offenders.” Id. § 15-20A-2(1). It 

specified that the purpose of the registration requirement was “not 

to punish.” Id. § 15-20A-2(5). It stated that the registration 

requirements were instead designed to “increas[e] public safety” by

“mandating the release of certain information to the public.” See 

id. § 15-20A-2(1). The legislature believed these registration 

requirements would “aid in public awareness and not only protect 

the community but serve to deter sex offenders from future crimes 

through frequent in-person registration.” Id.

ASORCNA also requires law enforcement to notify 

community residents about the presence of a registrant in that 

community. The purpose of community notification is to “protect 

the community” by “inform[ing] the public of the presence of sex 

offenders in the community.” Id. Again, the legislature specified 

that the purpose of community notification was “not to punish.” 

Id. § 15-20A-2(5).

ASORCNA mandates two types of community notification:

(1) indirectly through the internet on Alabama’s public sex offender 

registry website and (2) directly by either mailing or hand 

delivering notices to a registrant’s neighbors. Id. §§ 15-20A-8(a), 15-

20A-21(a), (b).

First, law enforcement must maintain a public registry 

website with information about sex offenders. Id. § 15-20A-8(a).

The statute requires that the website include certain information 

about each registrant in the state: his name, his home address, the 

address of his school or job, his picture, and a list of his qualifying 

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crimes. Id. And the website cannot include certain other 

information: the registrant’s social security number; information

about arrests that did not result in conviction; travel and 

immigration document numbers; the identity of victims; and the 

registrant’s email addresses, instant message addresses, other 

online identifiers, or internet service providers. Id. The website

must include “instructions on how to seek correction of 

information that a person contends is erroneous.” Id. § 15-20A-8(g).

The website must include a warning that the information 

contained on it “should not be used to unlawfully injure, harass, or 

commit a crime against any person named in the registry or 

residing or working at any reported address and that any such 

action may result in civil or criminal penalties.” Id. § 15-20A-8(h). It 

also must disclose that ALEA “did not consider or assess the 

individual’s specific risk of reoffense or current dangerousness; that 

inclusion on the website is based solely on an individual’s 

conviction record and state law; and that the Legislature’s purpose 

in providing this data is to make the information more easily 

available and accessible, not to warn about any specific individual.” 

Id.

Second, ASORCNA requires law enforcement to notify the 

nearby members of the community directly by mailing or hand 

delivering flyers about registrants. Id. § 15-20A-21(b). Selfidentifying as a “Sex Offender Notification Flyer” issued by the 

Alabama Public Safety Community Information Center, the flyer 

contains the same information about a registrant that is included 

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on the public registry website. Id. Law enforcement must send the 

flyers to a registrant’s neighbors when he first establishes a 

residence.15 Id. § 15-20A-21(a), (b). Law enforcement may also use 

other notification methods such as posting a copy of the flyer in a 

prominent place, including it in a local newspaper, or posting it 

electronically. Id.

B. Residency Restrictions 

ASORCNA’s residency restrictions impose geographic 

restrictions on where registrants may live and bar them, between 

the hours of 10:30 p.m. and 6:00 a.m., from places where minors

are present.16 See Ala. Code §§ 15-20A-11(a), (d), 15-20A-4(14). The 

Alabama legislature intended these restrictions to “protect[] 

vulnerable populations, particularly children.” Id. § 15-20A-2(5). A 

registrant who knowingly violates these restrictions may be 

punished by up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-

20A-11(i). 

15 How widely law enforcement distributes the flyers depends on where the 

registrant lives. In Birmingham, Mobile, Huntsville, and Montgomery, law 

enforcement must distribute flyers to anyone who lives within 1,000 feet of 

the registrant’s residence. Ala. Code § 15-20A-21(a)(1). In any other city with a 

population of 5,000 or more, the distance is 1,500 feet. Id. § 15-20A-21(a)(2). In 

any other area, the distance is 2,000 feet. Id. § 15-20A-21(a)(3). In addition, law 

enforcement must notify all schools and childcare facilities within three miles 

of the registrant’s residence. Id. § 15-20A-21(a).

16 ASORCNA also prohibits a registrant from living within 2,000 feet of a 

former victim or the victim’s immediate family. Ala. Code § 15-20A-11(b). Mr. 

McGuire does not challenge this restriction, so we do not address it.

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The geographic residency restriction prohibits registrants 

from “resid[ing]” in exclusion zones that extend 2,000 feet from the 

property line of each school and childcare center17 in Alabama. Id.

§ 15-20A-11(a). A registrant need not stay overnight at a place to 

“reside” there. Id. § 15-20A-4(20). By definition, a registrant, even 

one who is homeless, resides anywhere he is “habitually or 

systematically present” and thus may reside at more than one place 

at a time. Id. Whether a registrant resides at a place depends on 

“the totality of the circumstances, including the amount of time the 

person spends at the place and the nature of the person’s conduct 

at the place.” Id. A registrant is considered to reside at a place if he 

spends (1) “more than four hours a day” there “on three or more 

consecutive days”; (2) “more than four hours a day” there “on 10 

or more aggregate days during a calendar month”; or (3) “any 

amount of time” there “coupled with statements or actions that 

indicate an intent to live at the place or to remain at the place for 

the periods specified in this sentence.” Id.

A registrant may live in an exclusion zone if, after 

establishing his residence, changes occur to the surrounding area 

that render the location noncompliant. See id. § 15-20A-11(c). For 

17 ASORCNA also bars a registrant from residing within 2,000 feet of a 

“resident camp facility.” Ala. Code § 15-20A-11(a). “[A] resident camp facility 

includes any place, area, parcel, or tract of land which contains permanent or 

semi-permanent facilities for sleeping owned by a business, church, or 

nonprofit organization used primarily for educational, recreational, or 

religious purposes for minors[.]” Id. As we have stated, registrants can apply 

for relief from these residency restrictions. See id. § 15-20A-23.

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example, if a registrant lives outside an exclusion zone and a new 

childcare center opens 500 feet away, the registrant generally may 

stay in his home. In addition, the Attorney General represents to 

us that the geographic residency restriction permits a registrant to 

continue living in a residence that he established before

ASORCNA’s effective date unless the registrant was released or 

convicted of a new offense after ASORCNA’s enactment. The 

record supports that this is indeed how the law has been applied in 

practice.18

Beyond the geographic residency restriction, ASORCNA 

prohibits a registrant from “conduct[ing] an overnight visit with a 

minor” unless the registrant is the parent, grandparent, stepparent, 

sibling, or stepsibling of the minor. Id. § 15-20A-11(d). An overnight 

visit means “[a]ny presence between the hours of 10:30 p.m. and 

6:00 a.m.” Id. § 15-20A-4(14). Thus, during those hours, a registrant 

may not be present—for any period or any reason—where a minor 

18 There are two other exceptions to ASORCNA’s geographic residency 

restrictions. First, before moving, a registrant may ask law enforcement to 

determine whether his intended new residence complies with ASORCNA. If 

law enforcement states in writing that the residence complies with 

ASORCNA, the registrant has not violated the law if it later turns out that the 

residence is within an exclusion zone. Ala. Code § 15-20A-11(g). Second, a 

registrant who is terminally ill or permanently immobile, has a debilitating 

medical condition requiring substantial care or supervision, or requires 

placement in a residential health care facility may be permitted to live inside 

an exclusion zone if a state court finds by clear and convincing evidence that 

he does not a pose a “substantial risk” of committing a future sex offense. Id.

§ 15-20A-23(a), (g).

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is present, unless the registrant and the minor are related in one of 

the ways listed in § 15-20A-11(d).

C. Employment Restriction 

ASORCNA limits where registrants may work or volunteer. 

The Act bars registrants from “accept[ing] or maintain[ing] 

employment or a volunteer position within 2,000 feet of the 

property on which a school or childcare facility is located.” Ala. 

Code § 15-20A-13(b).19 An exception permits a registrant to 

continue to work in an exclusion zone if, after he accepts 

employment, a new school or childcare center opens within 2,000 

feet of his workplace. See id. § 15-20A-13(d). Additionally, a 

registrant may petition for relief from these employment 

restrictions if he was not convicted of certain sexual offenses and 

the court finds by clear and convincing evidence that he does not 

pose a substantial risk of committing another sexual offense. Id.

§ 15-20A-25(a), (f).

Like the residency restrictions, the Alabama legislature 

enacted the employment restriction to “further[] the primary 

governmental interest of protecting vulnerable populations, 

19 ASORCNA includes two other employment restrictions. One

bars registrants from working or volunteering at schools, childcare centers, or 

businesses that primarily serve children. Ala. Code § 15-20A-13(a). The other 

bars registrants convicted of sex offenses involving children from working or 

volunteering within 500 feet of a playground, park, athletic field or facility, or 

other business or facility having a principal purpose related to children. Id.

§ 15-20A-13(c).

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20 Opinion of the Court 15-10958

particularly children.” Id. § 15-20A-2(5). A registrant who 

knowingly violates the employment restriction may be punished 

with up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-20A13(g).

D. Homeless Registration Requirement 

Registrants who are homeless must report to law 

enforcement far more frequently than registrants who have fixed 

residences. Homeless registrants must report 56 times a year 

because, in addition to the quarterly reports required of all 

registrants, they must make weekly reports to law enforcement.

Ala. Code §§ 15-20A-10(f), 15-20A-12(b). Each week, a registrant 

who is homeless must provide a detailed description of where he 

“resided during the week” and a list of locations where he “plans to 

reside in the upcoming week with as much specificity as possible.”

Id. § 15-20A-12(d)(1).

The Alabama legislature required homeless sex offenders to 

report more often than other registrants because of “their 

mobility,” finding that more frequent registration would protect 

the public. Id. § 15-20A-2(3). It found that “[a]s the number of 

homeless sex offenders increases, locating, tracking, and 

monitoring these offenders becomes more difficult.” Id. The 

legislature expressly “declare[d] that its intent in imposing” this 

monitoring requirement was “not to punish.” Id. § 15-20A-2(5). If a 

homeless registrant “knowingly violates” the registration 

requirements, he faces up to 10 years’ imprisonment. Id. §§ 13A-5-

6(a)(3), 15-20A-12(f).

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15-10958 Opinion of the Court 21

E. Travel Notification Requirement 

The Act requires registrants to notify law enforcement 

when traveling. Before leaving his county of residence for three or 

more consecutive days, a registrant must report to the county 

sheriff and “sign a travel notification document.” Ala. Code § 15-

20A-15(a). He must disclose his dates of travel, intended 

destination, and temporary lodging information. Id. § 15-20A-15(b).

For domestic travel, a registrant must complete the document 

within three business days of beginning his trip. Id. §§ 15-20A-4(9),

15-20A-15(a). For international travel, he generally must complete 

the travel form 21 days prior to travel. Id. § 15-20-15(c). A registrant 

who knowingly violates the travel notification requirement faces

up to 10 years’ imprisonment. Id. §§ 13A-5-6(a)(3), 15-20A-15(h).

The Alabama legislature imposed the travel notification 

requirement “to protect the public, and, most importantly, [to] 

promote child safety,” not to punish registrants. Id. § 15-20A-2(5).

III. STANDARD OF REVIEW 

Because Mr. McGuire appeals the district court’s judgment 

entered after a bench trial, “we review the district court’s 

conclusions of law de novo and the district court’s factual findings 

for clear error.” Proudfoot Consulting Co. v. Gordon, 576 F.3d 

1223, 1230 (11th Cir. 2009).

IV. MOOTNESS 

Before turning to the merits of Mr. McGuire’s claims, we 

must address whether any of Mr. McGuire’s claims are moot. As 

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22 Opinion of the Court 15-10958

we noted above, while this appeal was pending, the Alabama 

legislature amended ASORCNA, and ALEA changed the way it 

implemented ASORCNA’s identification-labeling requirement.

See supra Section I-B.

The Constitution’s “cases” and “controversies” requirement 

“subsists through all stages of federal judicial proceedings.” Lewis 

v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “[I]t is not enough 

that a dispute was very much alive when [the] suit was filed.” Id.

“The parties must continue to have a personal stake in the outcome 

of the lawsuit.” Id. at 478 (internal quotation marks omitted).

Otherwise, we lack jurisdiction.

When a plaintiff challenges a law as unconstitutional and 

seeks only declaratory and injunctive relief, as Mr. McGuire does

here, a subsequent change to the law or relevant policy can moot

his claims. See Crown Media, LLC v. Gwinnett Cnty., 380 F.3d 

1317, 1324 (11th Cir. 2004); Jews for Jesus, Inc. v. Hillsborough 

Cnty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). In a case 

like this one involving multiple challenges, the entire case becomes 

moot only when the superseding statute removes all challenged 

features of the law. Coral Springs St. Sys., Inc. v. City of Sunrise, 

371 F.3d 1320, 1342–43 (11th Cir. 2004). Challenges to individual 

features may become moot, however. See Crown Media, 380 F.3d 

at 1324.

Whether a defendant’s voluntary cessation of conduct 

moots a claim is subject to a “stringent” test. Coral Springs, 

371 F.3d at 1328 (internal quotation marks omitted). But we give 

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15-10958 Opinion of the Court 23

“governmental entities and officials . . . considerably more leeway” 

than private parties. Id. at 1328–29. The repeal or amendment of a 

statute or policy generally will moot a challenge unless there is a 

“substantial likelihood” that the challenged statute or policy will be 

reenacted or reinstated. Id. at 1329; Jews for Jesus, 162 F.3d at 629.

We agree with the parties that amendments to ASORCNA 

have not mooted Mr. McGuire’s entire case. Some of the 

challenged provisions—the residency and employment 

restrictions, the homeless registration requirement, the travel 

notification requirement, and community notification—remain in 

effect. Accordingly, we address the merits of these claims based on

ASORCNA as it currently exists. See Naturist Soc’y, Inc. v. Fillyaw,

958 F.2d 1515, 1520 (11th Cir. 1992).

But Mr. McGuire’s objections to other requirements of

ASORCNA are moot. These include challenges to the dual 

reporting requirements for city-dwelling registrants who are 

homeless or plan to travel. After the district court declared these 

requirements unconstitutional, ASORCNA was amended to 

remove those particular dual reporting requirements. Mr. McGuire 

does not contend that there is a substantial likelihood that those 

dual reporting provisions will be reenacted; thus we conclude that 

the claims challenging these requirements are moot.

Mr. McGuire’s challenge to the identification-labeling

requirement also is moot. Under ASORCNA, a registrant must 

carry a valid driver’s license or other identification card issued by 

ALEA. Ala. Code § 15-20A-18(a). The identification must “bear a 

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24 Opinion of the Court 15-10958

designation that, at a minimum, enables law enforcement officers 

to identify the licensee as a sex offender.” Id. § 15-20A-18(c). ALEA 

implemented the labeling requirement by placing the phrase 

“CRIMINAL SEX OFFENDER” in red, capital letters on the front

of registrants’ driver’s licenses and identification cards. While this 

appeal was pending, however, ALEA changed its policy and no 

longer uses the “CRIMINAL SEX OFFENDER” label.

Given ALEA’s policy change, Mr. McGuire’s challenge is 

moot. ALEA ceased using the “CRIMINAL SEX OFFENDER” 

label after a district court in another case declared it

unconstitutional, and the Attorney General did not appeal that 

decision. See Doe, 367 F. Supp. 3d at 1339. We presume that ALEA

will not reinstate the policy. Therefore, Mr. McGuire’s challenge 

to the identification-labeling requirement is moot. See Coral 

Springs, 371 F.3d at 1328–29. 

To recap: the part of Mr. McGuire’s appeal challenging the 

identification-labeling requirement is moot. Also moot is the 

Attorney General’s cross-appeal challenging the district court’s 

order striking the dual reporting requirements for homeless 

registrants and for travel notification. As a result, we will vacate the 

district court’s judgment as to those requirements and remand 

with directions to dismiss as moot Mr. McGuire’s claims 

challenging them. See CIA v. Holy Spirit Ass’n for the Unification 

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15-10958 Opinion of the Court 25

of World Christianity, 455 U.S. 997, 997 (1982);Great W. Sugar Co. 

v. Nelson, 442 U.S. 92, 93 (1979).20

20 While this appeal was pending, the Attorney General sought to dismiss Mr. 

McGuire’s challenge to the homeless registration requirement as moot 

because Mr. McGuire was no longer homeless. After oral argument, we 

remanded the case to the district court for the limited purpose of finding facts 

to determine whether this challenge was moot. Although Mr. McGuire had 

lived in a house for a time, the district court found that he was homeless again.

Even when he was not homeless, the court found, there existed a reasonable 

expectation and demonstrated probability that he would return to being 

homeless in the future. The court also concluded that if Mr. McGuire ceased 

to be homeless in the future, his period of homelessness would be too short to 

litigate fully his challenge to the homeless registration provision.

It appears from Alabama’s sex offender registry website that Mr. McGuire’s 

current address is at a house in Montgomery, and he is no longer homeless. 

ALEA’s Sex Offender Registry is available here: 

https://www.icrimewatch.net/results.php?AgencyID=

54247&SubmitNameSearch=1&OfndrCity=montgomery&OfndrLast=&Of

ndrFirst=&level=&AllCity=&altaddr=home_addr&excludeIncarcerated=0

&page=1 (last visited Sept. 29, 2022). We may take judicial notice of it. See

Fed. R. Evid. 201(b), (d); United States v. Howard, 28 F.4th 180, 186 n.2 (11th 

Cir. 2022) (“Absent some reason for mistrust, courts have not hesitated to take 

judicial notice of agency records and reports.”) (internal quotation marks 

omitted). Still, given the district court’s findings, we conclude that his 

challenge to the homeless reporting requirement is not moot under the 

capable-of-repetition-yet-evading-review exception to the mootness doctrine.

See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016).

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26 Opinion of the Court 15-10958

V. THE LEGAL FRAMEWORK FOR EVALUATING EX 

POST FACTO CLAIMS 

The Constitution forbids states from “pass[ing] any . . . ex 

post facto Law.” U.S. Const. art. I, § 10, cl. 1. The Ex Post Facto

Clause prohibits retroactive punishment; that is, it “forbids the 

application of any new punitive measure to a crime already 

consummated.” Kansas v. Hendricks, 521 U.S. 346, 370 (1997) 

(internal quotation marks omitted). By prohibiting retroactive 

punishments, “the Framers sought to assure that legislative Acts 

give fair warning of their effect and permit individuals to rely on 

their meaning until explicitly changed.” Weaver v. Graham, 

450 U.S. 24, 28–29 (1981). The framers of the Constitution intended 

provisions that serve as a check on a state’s power, like the Ex Post 

Facto Clause, to protect disfavored groups:

Whatever respect might have been felt for the state 

sovereignties, it is not to be disguised that the framers 

of the constitution viewed, with some apprehension, 

the violent acts which might grow out of the feelings 

of the moment; and that the people of the United 

States, in adopting that instrument, have manifested 

a determination to shield themselves and their 

property from the effects of those sudden and strong 

passions to which men are exposed.

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Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137–38 (1810).21 Because 

the Ex Post Facto Clause prohibits the retroactive application only 

of laws imposing punishment, a statutory scheme that is civil and 

regulatory in nature rather than criminal may apply retroactively 

without violating the Constitution. See Collins v. Youngblood, 

497 U.S. 37, 43 (1990); United States v. W.B.H., 664 F.3d 848, 852 

(11th Cir. 2011).

To show entitlement to relief under the Ex Post Facto

Clause, Mr. McGuire must establish that the challenged provisions 

in ASORCNA are criminal in nature. To determine whether a law 

is criminal in nature, we apply a two-part “intent-effects” test. See 

Smith v. Doe, 538 U.S. 84, 92 (2003). In the first step of the inquiry, 

we ask whether the legislature intended to impose punishment. Id.

If the legislature intended to impose punishment, the inquiry ends, 

and the statutory scheme is punitive. Id. If the intent of the 

legislature was to create a civil and nonpunitive scheme, we 

proceed to the second step and ask whether the statutory scheme 

is “so punitive either in purpose or effect as to negate” the 

legislature’s intent to deem it civil. Id. (internal quotation marks 

omitted). The Supreme Court has cautioned, “[b]ecause we 

21 See also The Federalist No. 44, at 249 (James Madison) (E.H. Scott ed., 1898) 

(describing the Ex Post Facto Clause as a “constitutional bulwark in favor of 

personal security and private rights”); The Federalist No. 84, at 468 (Alexander 

Hamilton) (E.H. Scott ed., 1898) (“[T]he subjecting of men to punishment for 

things which, when they were done, were breaches of no law . . . ha[s] been, 

in all ages, [a] favorite and most formidable instrument[] of tyranny.”).

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28 Opinion of the Court 15-10958

ordinarily defer to the legislature’s stated intent, only the clearest 

proof will suffice to override legislative intent and transform what 

has been denominated a civil remedy into a criminal penalty.” Id.

(emphasis added) (internal quotation marks and citation omitted).

We discuss each step of the intent-effects analysis below.

A. The Intent Analysis 

At the first step in our analysis, we ask “whether the 

legislature, in establishing the penalizing mechanism, indicated 

either expressly or impliedly a preference for [a civil or criminal] 

label.” Smith, 538 U.S. at 93 (internal quotation marks omitted).

For this inquiry into legislative intent, we “consider the statute’s 

text and its structure.” Id. at 92.

When the legislature states in a statute’s text that the 

objective of the statutory scheme is to protect the public, it 

indicates an exercise of the State’s power to protect the health and 

safety of its citizens and evidences an intent to enact a civil 

regulatory scheme. See id. at 93–94. In Smith, a group of sex 

offenders challenged Alaska’s statute that required sex offenders to 

register with law enforcement and made much of the registration 

information public. Id. at 90–91. The plaintiffs claimed that 

retroactive application of the statute violated the Ex Post Facto 

Clause. Id. at 89. Under the Alaska law, individuals who had 

committed sex offenses were required to register with local law 

enforcement either quarterly for life or annually for fifteen years, 

depending on the number and the seriousness of their prior sex 

offense convictions. Id. at 90. The law also required the State to 

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maintain a publicly available registry of sex offenders, which it 

made available on a website. Id. at 90–91. 

The Supreme Court concluded that the Alaska legislature 

intended the registration and community notification scheme to be 

civil. Id. at 93. The Court explained that the statute included a 

finding that sex offenders posed a high risk of reoffending and 

identified protecting the public as the primary governmental 

interest behind the law. Id. The Court accepted these statements 

on their face as sufficient to indicate that the legislature intended to 

create “a civil scheme designed to protect the public from harm.”

Id. (alteration adopted) (internal quotation marks omitted). It 

stated that the “imposition of restrictive measures on sex offenders 

adjudged to be dangerous is a legitimate nonpunitive 

governmental objective and has been historically so regarded.” Id.

(internal quotation marks omitted).

The Court rejected the registrants’ argument that other 

features of the statute showed that the legislature intended it to be 

punitive. See id. at 93–94. The registrants argued that the 

codification of the registration provisions in the state’s criminal 

procedure code showed a legislative intent to punish. Id. The Court 

acknowledged that the placement of the provisions in the criminal 

procedure code could be probative of the legislature’s intent. Id. at 

94. But it found this placement “not dispositive” because the 

“location and labels of a statutory provision do not by themselves 

transform a civil remedy into a criminal one.” Id. The Court thus 

determined that “[t]he partial codification” of the registration 

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30 Opinion of the Court 15-10958

provisions in the criminal procedure code was insufficient “to 

support a conclusion that the legislative intent was punitive.” Id. at 

95.

B. The Purpose or Effect Analysis 

In the second step of the inquiry, we “examine whether the 

statutory scheme is so punitive either in purpose or effect as to 

negate the State’s intention to deem it civil.” Smith, 538 U.S. at 92 

(alteration adopted) (internal quotation marks omitted). To 

determine whether a regulatory scheme is “so punitive” in purpose 

or effect when applied retroactively, we consider several factors 

that the Supreme Court originally adopted in Kennedy v. 

Mendoza-Martinez, 372 U.S. 144, 168–69 (1963), and later applied 

in the ex post facto context, see Smith, 538 U.S. at 97. MendozaMartinez directed us to consider:

whether, in its necessary operation, the regulatory

scheme: has been regarded in our history and 

traditions as a punishment; imposes an affirmative 

disability or restraint; promotes the traditional aims 

of punishment; has a rational connection to a 

nonpunitive purpose; or is excessive with respect to 

this purpose. 

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Smith, 538 U.S. at 97.22 These factors, which were “designed to 

apply in various constitutional contexts,” are “neither exhaustive 

nor dispositive” and instead function as “useful guideposts.” Id.

(internal quotation marks omitted). Because courts “ordinarily 

defer to the legislature’s stated intent, only the clearest proof will 

suffice to override legislative intent and transform what has been 

denominated a civil remedy into a criminal penalty.” Id. at 92 

(internal quotation marks and citation omitted). The Supreme 

Court has described this as a “heavy burden.” Hendricks, 521 U.S. 

at 361. As our sister circuit has observed, “[t]his is a challenging 

standard for plaintiffs.” Hope v. Comm’r of Ind. Dep’t of Corr., 9 

F.4th 513, 530–31 (7th Cir. 2021) (en banc).

As we apply the listed factors, Smith, following MendozaMartinez, commands that we consider the challenged statutory 

scheme in its “necessary operation.” Smith, 538 U.S. at 97. Courts 

generally use one of three distinct frameworks to review a 

constitutional challenge to a statutory provision, treating it as an 

22 Mendoza-Martinez identified two other factors, “whether the regulation 

comes into play only on a finding of scienter and whether the behavior to 

which it applies is already a crime.” Smith, 538 U.S. at 105. In Smith, the Court 

gave these factors “little weight.” Id. The Court explained that Alaska’s 

scheme applied “only to past conduct, which was, and is, a crime.” Id.

Although the duty to register applied to individuals with prior convictions for 

sexual offenses only, the Court found it significant that the duty to register was 

based on prior crimes and “not predicated upon some present or repeated 

violation.” Id. Following the Supreme Court’s lead, we likewise give these 

factors little weight and find it unnecessary to address them further.

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32 Opinion of the Court 15-10958

as-applied, a facial, or a quasi-facial challenge. After considering 

Smith, we conclude that “necessary operation” review does not fit 

neatly into any of these frameworks. Let us explain why.

In an as-applied challenge, a plaintiff seeks to vindicate only 

her own constitutional rights. Jacobs v. Fla. Bar, 50 F.3d 901, 906 

(11th Cir. 1995). In evaluating an as-applied challenge, a court 

“addresses whether a statute is unconstitutional on the facts of a 

particular case” or in its application “to a particular party.” Harris 

v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 

2009) (internal quotation marks omitted). By contrast, in a facial 

challenge, a plaintiff seeks “to invalidate a statute . . . itself” and to 

vindicate not only her own rights “but also those of others who 

may be adversely impacted by the statute.” DA Mortg., Inc. v. City 

of Miami Beach, 486 F.3d 1254, 1262 (11th Cir. 2007) (internal 

quotation marks omitted). A plaintiff who brings a facial challenge 

“bears the burden of proving that the law could never be applied 

in a constitutional manner.” Id. To prevail, the plaintiff “must 

establish that no set of circumstances exists under which the 

[statute] could be valid.” Am. Fed’n of State, Cnty. & Mun. Emps. 

Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (internal 

quotation marks omitted). In a “quasi-facial” challenge, the plaintiff 

contends that the law cannot be constitutionally applied to a 

defined subset of people the law covers, which includes herself. Id.

To prevail in a quasi-facial challenge, he must satisfy the standard 

for a facial challenge to the extent that his claim “reach[es] beyond 

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15-10958 Opinion of the Court 33

[her] particular circumstances.” Doe v. Reed, 561 U.S. 186, 194 

(2010).

At first blush, Mr. McGuire appears to have brought an asapplied challenge because in his complaint he sought to vindicate 

his individual rights alone through a determination that the 

defendants had applied an ex post facto law to him. He did not ask 

the court to provide relief from ASORCNA’s provisions to any 

other registrants. But an ex post facto challenge is different: we do 

not review it as we would an as-applied claim, where we focus

exclusively on a law’s application to a particular party. See Seling 

v. Young , 531 U.S. 250, 263–65 (2001).

In Young, the plaintiff challenged his confinement under a 

state law that authorized the civil commitment of sexually violent 

individuals who suffered “from a mental abnormality or 

personality disorder” that made them “likely to engage in 

predatory acts of sexual violence.” Id. at 253. Shortly before Young 

completed his prison sentence for a sex crime, he was civilly 

committed. Id. at 255–56. After years of confinement, he filed a 

federal habeas petition claiming that his continued detention 

violated the Ex Post Facto and Double Jeopardy Clauses. Id. at 258.

He alleged that the confinement statute was punitive as applied to 

him because of the length of time he had been confined and the 

conditions of his confinement, which were more restrictive than 

those placed on other civil commitment detainees. Id. at 259. The 

Ninth Circuit concluded that Young had adequately alleged the law 

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34 Opinion of the Court 15-10958

was punitive as applied to him and remanded for further 

proceedings. Id. at 260.

The Supreme Court rejected the Ninth Circuit’s conclusion 

that Young “could raise an ‘as-applied’ challenge to the [statute] on 

. . . ex post facto grounds.” Id. at 262. It explained that a court may 

not evaluate the “civil nature of an Act by reference to the effect 

that Act has on a single individual.” Id. at 262; see also Flemming 

v. Nestor, 363 U.S. 603, 614 (1960) (noting that a civil law is “not 

punishment even though it may bear harshly upon one affected”).

The Court warned that considering the effect of a law on only a 

single individual was “unworkable” because such an analysis 

would “never conclusively resolve whether a particular scheme is 

punitive.” Young, 531 U.S. at 263. Young makes clear that an ex 

post facto claim cannot be treated as an as-applied challenge. See 

id. at 262–63; Does v. Wasden, 982 F.3d 784, 791 (9th Cir. 2020) 

(explaining that “ex post facto claims based on the punitive effect 

of purportedly civil statutes cannot be construed as ‘as-applied’ 

challenges”). 

Nor do ex post facto claims fit the frameworks used to 

review facial or quasi-facial challenges. In Smith, after concluding 

that the legislature intended to create a civil scheme, the Supreme 

Court considered whether Alaska’s registration and community 

notification provisions were sufficiently punitive in effect to 

override the Alaska legislature’s expressed intent. See 538 U.S at 97. 

In applying the Mendoza-Martinez factors, the Court did not use 

the words “facial” or “quasi-facial,” and it did not inquire whether 

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15-10958 Opinion of the Court 35

there was at least one sex offender to whom the registration or 

notification provisions could retroactively be applied without 

violating the Constitution. Id. at 97–106. Instead, the Court’s 

reasoning reflects that it considered the effects of the registration 

and notification provisions as they were generally felt by those who 

were subject to them. See id. at 100 (evaluating whether the 

challenged law imposed an affirmative disability or restraint, a 

Mendoza-Martinez factor, by looking for evidence that the 

statutory provisions “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”).

Regardless of how the framework is described, we can distill 

that a plaintiff has a “heavy burden,” Hendricks, 521 U.S. at 361,

when seeking to override a legislative expression of intent that a 

challenged provision is civil, and “only the clearest proof will 

suffice” to meet that burden, Smith, 538 U.S. at 92.23 We 

23 Our decision in Doe v. Miami-Dade County, 974 F.3d 1333 (11th Cir. 2020), 

is not to the contrary. That case involved an ex post facto challenge to a county 

ordinance that barred sex offenders whose victims were children from living 

within 2,500 feet of a school. Id. at 1335. Before trial, the registrants 

“affirmatively disavowed” that they were seeking as-applied relief, telling the 

court they sought “only” facial relief. Id. at 1339 n.3, 1340. During trial, the 

registrants shifted gears and sought to amend their complaint to add an asapplied claim. Id. at 1336–37. The district court refused to allow the registrants 

to amend their complaint at that point. Id. at 1337. We affirmed, holding that 

the district court did not abuse its discretion in denying leave to amend, 

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36 Opinion of the Court 15-10958

understand that a plaintiff cannot carry his heavy burden by 

demonstrating the law’s effects only as to him. At the same time, a 

plaintiff need not satisfy the standard for a facial or quasi-facial 

challenge, which would require a showing that the law could never 

be applied retroactively in a constitutional manner. 

VI. ANALYSIS OF ASORCNA’S CHALLENGED 

PROVISIONS UNDER THE INTENT-EFFECTS TEST 

At last, we apply the intent-effects test to determine whether 

ASORCNA is civil or punitive. Because we conclude that the 

Alabama legislature intended to enact a civil legislative scheme, we 

must assess whether Mr. McGuire has shown by “the clearest 

proof” that ASORCNA’s challenged provisions are so punitive in 

purpose or effect as to override the Alabama legislature’s stated 

intent to enact a civil regulatory scheme. See Smith, 538 U.S. at 92.

We hold that he has failed to meet that heavy burden. See

Hendricks, 521 U.S. at 361.

emphasizing that the county had no notice that the registrants intended to 

bring an as-applied claim and thus no opportunity to prepare to rebut that 

claim. Id. at 1339–41. 

We questioned whether there was any actual distinction between an “asapplied” and “facial” ex post facto challenge. Id. at 1339 n.3. But given the 

registrants’ litigation strategy and their express disavowal in the district court 

that they were bringing an as-applied challenge, we assumed, without 

deciding, that different frameworks were used to review “as-applied” and 

“facial” ex post facto challenges. See id.

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A. The Alabama Legislature Intended to Create a Civil, 

Nonpunitive Scheme 

We begin by looking to the Alabama legislature’s intent. In 

its legislative findings, the legislature explained that it had enacted 

the employment and residency restrictions along with the 

“monitoring and tracking” and community notification provisions 

to “further[] the primary governmental interest of protecting 

vulnerable populations, particularly children.” Ala. Code § 15-20A2(5). It also declared that “its intent in imposing certain registration, 

notification, monitoring, and tracking requirements on sex 

offenders [was] not to punish sex offenders but to protect the public 

and, most importantly, promote child safety.” Id. We conclude that 

by expressly disavowing an intent to punish sex offenders and 

setting forth public-safety-related goals for the statutory scheme, 

the Alabama legislature intended the legislation to be nonpunitive.

See Smith, 538 U.S. at 93 (holding that Alaska legislature intended 

to enact a civil scheme when statutory text identified protecting the 

public as the primary governmental interest).

Mr. McGuire argues that despite the Alabama legislature’s 

expressed intent, before turning to the Mendoza-Martinez factors 

we should infer from the structure of ASORCNA that the 

legislature intended the scheme to be punitive because the statute 

is codified in Alabama’s criminal procedure code and imposes 

criminal penalties on registrants who violate its provisions. He also 

argues that a canon of statutory construction indicates that the 

Alabama legislature had a punitive intent. But neither the structure 

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38 Opinion of the Court 15-10958

of the Act nor the application of the canons of construction reveals 

a punitive intent.

We are not persuaded by Mr. McGuire’s codification 

argument. Even though a state legislature’s decision to codify a 

statutory scheme in its criminal code may indicate a legislative 

intent to enact a punitive scheme, Smith tells us that when the 

legislature stated expressly in the statute that it intended the 

legislative scheme to have a nonpunitive objective, the location of 

the statutory provisions alone is insufficient to conclude otherwise.

Id. at 94–95. We acknowledge that Mr. McGuire’s codification 

argument is somewhat stronger here than the registrants’ 

argument in Smith because all (not just part) of ASORCNA is 

codified in Alabama’s criminal procedure code. But Smith’s

reasoning leads us to reject this argument. Id. As the Court pointed 

out, “[i]nvoking the criminal process in aid of a statutory regime 

does not render the statutory scheme itself punitive.” Id. at 96.

Mr. McGuire’s related structural argument, that the 

legislature intended ASORCNA to be punitive because violations 

of it are criminal, is foreclosed by our decision in W.B.H. In 

W.B.H., we considered whether Congress intended SORNA, the 

federal statute requiring in-person sex offender registration, to be 

civil or punitive. 664 F.3d at 854. We rejected the argument that 

Congress implicitly intended to create a punitive scheme by 

imposing a criminal penalty for violating the registration 

requirement because “civil regimes may impose criminal penalties 

for violations of their regulatory requirements.” Id. Given 

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Congress’s statement that the objective of the statute was to 

protect children from sex offenders, we held that Congress 

intended to enact a civil, nonpunitive scheme despite making 

failure to register a crime. Id. at 854–55. W.B.H. dictates our 

conclusion that the Alabama legislature intended ASORCNA to be 

civil even though the statute imposes criminal penalties on 

registrants who fail to comply with its provisions.

Mr. McGuire’s next argument is that we should conclude 

the Alabama legislature intended the residency and employment 

restrictions to be punitive based on the expressio unius est exclusio 

alterius canon of construction. The legislature specified that the 

registration, notification, monitoring, and tracking requirements 

were not intended to punish sex offenders without mentioning the 

residency and employment restrictions in that particular sentence, 

though they are addressed in the same paragraph. Ala. Code § 15-

20A-2(5).24 Mr. McGuire argues that under the expressio unius 

24 In its entirety, the paragraph states: 

Sex offenders, due to the nature of their offenses, have a 

reduced expectation of privacy. In balancing the sex offender’s 

rights, and the interest of public safety, the Legislature finds 

that releasing certain information to the public furthers the 

primary governmental interest of protecting vulnerable 

populations, particularly children. Employment and residence 

restrictions, together with monitoring and tracking, also 

further that interest. The Legislature declares that its intent in 

imposing certain registration, notification, monitoring, and 

tracking requirements on sex offenders is not to punish sex 

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40 Opinion of the Court 15-10958

canon, we must infer that the legislature intended the omitted 

residency and employment restrictions to be punitive. We cannot 

agree.

Under this canon of construction, “when a legislature has 

enumerated a list or series of related items, the legislature intended 

to exclude similar items not specifically included in the list.”

Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1193 

(11th Cir. 2011). But the canon “can be overcome by contrary 

indications that adopting a particular rule or statute was probably 

not meant to signal any exclusion.” Marx v. Gen. Revenue Corp., 

568 U.S. 371, 381 (2013) (internal quotation marks omitted).

We reject Mr. McGuire’s argument because the expressio 

unius canon is overcome here. In context, ASORCNA’s exclusion 

of the residency and employment restrictions from the list of 

provisions that the legislature stated in one sentence were intended 

“not to punish” does not signal that it intended for them to be 

punitive. Ala. Code § 15-20A-2(5). It does not because in the 

immediately preceding sentence of the very same paragraph, the 

legislature stated that the residency and employment restrictions

“also further” the interest in “protecting vulnerable populations, 

particularly children.” Id. That indicates a civil, nonpunitive intent.

See Smith, 538 U.S. at 93–94.

offenders but to protect the public and, most importantly, 

promote child safety.

Ala. Code § 15-20A-2(5).

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15-10958 Opinion of the Court 41

B. Mr. McGuire Failed to Establish by the Clearest Proof 

that the Challenged Restrictions Are Sufficiently 

Punitive to Override the Legislature’s Intent 

Having determined that the Alabama legislature intended

ASORCNA to be civil and regulatory rather than punitive, we 

move to the second step of the ex post facto analysis: whether the 

challenged restrictions are “so punitive either in purpose or effect 

as to negate [Alabama’s] intention to deem” the restrictions civil.

Smith, 538 U.S. at 92 (internal quotation marks omitted). We 

consider each restriction in turn.25

25 For ease of analysis, we consider the residency and employment provisions 

of ASORCNA together because even in combination, we conclude that they 

do not violate the Ex Post Facto Clause. We recognize, however, that if our 

conclusion were different, we would be bound to preserve as much of the Act 

as possible. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“A court 

should refrain from invalidating more of the statute than is necessary. 

Whenever an act of [the legislature] contains unobjectionable provisions 

separable from those found to be unconstitutional, it is the duty of this court 

to so declare, and to maintain the act in so far as it is valid.” (alterations 

adopted) (internal quotation marks omitted)). Every statute codified as part of 

the 1975 Code of Alabama, including ASORCNA, is subject to a strong 

severability clause. See Ala. Code § 1-1-16 (“If any provision of this Code or 

any amendment hereto, or any other statute, or the application thereof to any 

person, thing or circumstances, is held invalid by a court of competent 

jurisdiction, such invalidity shall not affect the provisions or application of this 

Code or such amendment or statute that can be given effect without the 

invalid provisions or application, and to this end, the provisions of this Code 

and such amendments and statutes are declared to be severable.”).

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42 Opinion of the Court 15-10958

1. Mr. McGuire Failed to Carry His Heavy Burden to Prove 

that the Residency and Employment Restrictions Are 

Sufficiently Punitive in Purpose or Effect 

We first consider whether Mr. McGuire has established by 

the clearest proof that ASORCNA’s residency and employment 

restrictions are sufficiently punitive in purpose or effect to override

the legislative intent that they be civil. After careful consideration, 

we conclude that Mr. McGuire failed to carry the heavy burden

required to override the legislature’s stated nonpunitive intent.

a. Resemblance to a Traditional Punishment 

Mr. McGuire argues that the residency and employment 

restrictions, which jointly prohibit registrants from residing,

working, or volunteering within a 2,000-foot radius of any school 

or childcare facility in Alabama, sufficiently resemble the 

traditional punishment of banishment. We are not convinced.

With the first factor, we consider whether the statutory 

scheme imposes what has been regarded in our history and 

tradition as punishment. This type of “historical survey can be 

useful because a State that decides to punish an individual is likely 

to select a means deemed punitive in our tradition, so that the 

public will recognize it as such.” Smith, 538 U.S. at 97. But a

statutory restriction need not be identical to a traditional 

punishment for this factor to be satisfied. The relevant question is 

whether the challenged provision sufficiently “resemble[s]” or is 

“analogous” to a historical and traditional form of punishment. Id.

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15-10958 Opinion of the Court 43

at 97, 99; see also W.B.H., 664 F.3d at 855 (explaining that we 

consider whether a restriction “resemble[s] historical and 

traditional forms of punishment”). The amount of resemblance 

required must be something more than “initial resemblance.” See 

Smith, 538 U.S. at 98 (“Any initial resemblance to early 

punishments is, however, misleading. Punishments such as 

whipping, pillory, and branding inflicted physical pain and staged a 

direct confrontation between the offender and the public. Even 

punishments that lacked the corporal component, such as public 

shaming, humiliation, and banishment, involved more than the 

dissemination of information.”).

The question we face here is whether the residency and 

employment restrictions bear a sufficient resemblance to the 

traditional punishment of banishment. Banishment dates back 

more than 4,000 years. See Wm. Garth Snider, Banishment: The 

History of Its Use and a Proposal for Its Abolition Under the First 

Amendment, 24 New. Eng. J. on Crim. & Civ. Confinement 455, 

459 (1998). It is a form of punishment contained in the Code of 

Hammurabi, Mosaic law, the Old Testament Book of Esther, the 

Laws of Manu, and the T’ang Code. Id. at 459–60. It became most 

familiar to Americans in the early 1700s, when the United Kingdom 

passed the Transportation Act of 1718 and banished around 50,000 

of its criminals to America. Id. at 461–62.

As its history reflects, banishment punishes by “expell[ing]” 

a person “from the community.” Smith, 538 U.S. at 98. Sometimes 

it has been referred to as “exile, deportation, [or] relegation.” 

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44 Opinion of the Court 15-10958

United States v. Ju Toy, 198 U.S. 253, 269 (1905) (Brewer, J., 

dissenting). Whatever the name, it was considered a punishment 

of the “severest sort.” Id. at 273. Those who suffered it could 

“neither return to their original community nor, reputation 

tarnished, be admitted easily into a new one.” Smith, 538 U.S. at 

98. Banished offenders were rendered “absolutely dead in law” and 

“entirely cut off from society.” 1 William Blackstone, 

Commentaries on the Laws of England *132.

Although the residency and employment restrictions limit 

where registrants may live or work, we hold that the restrictions 

do not sufficiently resemble the traditional punishment of 

banishment to be considered punitive. Registrants are not totally 

prohibited from entering the exclusion zones that ASORCNA 

creates. It is true that they may not reside, work, or volunteer in 

the exclusion zones. But they remain able to enter exclusion zones 

for other purposes. For example, they may go into exclusion zones 

to see health care providers, visit friends or family, eat meals, shop, 

or worship. Indeed, a registrant may visit the same location in an 

exclusion zone every day, so long as he does not spend more than 

four hours a day in the place on three or more consecutive days or 

on ten or more aggregate days during a calendar month and does 

not indicate an intention to live there. See Ala. Code § 15-20A4(20). In addition, the Attorney General concedes that registrants 

are permitted to work in jobs that require them to perform some 

tasks inside exclusion zones. For example, the Attorney General 

says a registrant working as a delivery person may drop off 

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15-10958 Opinion of the Court 45

packages at locations inside exclusion zones and a registrant 

working as a landscaper may tend to yards inside exclusion zones.

Mr. McGuire nevertheless argues that the residency and 

employment restrictions resemble banishment because they 

“effectively” bar registrants from the City of Montgomery. 

Appellant’s Br. at 17. We assume for purposes of this appeal that 

restrictions prohibiting registrants from entering exclusion zones 

for some, but not all, purposes could in some circumstances

resemble banishment. But Mr. McGuire has not shown that 

ASORCNA’s residency and employment restrictions operate to 

effectively bar registrants from Montgomery. 

In arguing that the residency and employment restrictions 

effectively cast registrants out of Montgomery, Mr. McGuire points 

to two categories of evidence. First, he points to evidence about 

the difficulties he faced in finding a home or job outside the 

exclusion zones. Second, he points to evidence supporting the 

district court’s finding that the residency and employment 

restrictions excluded registrants from more than 80 percent of the 

housing stock and jobs in Montgomery.26

26 Mr. McGuire’s argument assumes that he can carry his heavy burden to 

show that the residency and employment restrictions in their necessary 

operation resemble banishment through evidence addressing the effect of 

these restrictions on registrants in his community of Montgomery, without 

establishing that the statewide restrictions also have a similar effect in other 

parts of Alabama. We do not decide whether this assumption is correct 

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46 Opinion of the Court 15-10958

Mr. McGuire’s evidence about his individual circumstances 

and the particular difficulties that he faced in finding compliant 

housing and work outside of the exclusion zones does not establish 

that the residency and employment restrictions resemble 

banishment. In relying on this evidence, Mr. McGuire effectively 

treats his ex post facto claim as an as-applied challenge in which he 

can establish a constitutional violation through evidence about the 

restrictions’ application solely to him. But the Supreme Court’s 

decision in Young forecloses the as-applied avenue. The Court 

made clear that we cannot evaluate whether a restriction is 

punitive “by reference to the effect that [it] has on a single 

individual.” Young, 531 U.S. at 262.

Setting aside evidence of the restrictions’ effects on Mr. 

McGuire personally, we consider his other evidence. He argues 

that the residency and employment restrictions effectively cast 

registrants out of Montgomery because they make approximately 

80 percent of the housing stock and 85 percent of the jobs off limits 

to registrants. 

The district court found that the residency and employment 

restrictions seriously limit registrants’ housing and employment 

options in Montgomery, and these findings are not clearly 

because, even assuming Mr. McGuire could carry his burden by introducing 

evidence only as to Montgomery, he failed to establish by the clearest proof 

that the residency and employment restrictions exclude registrants from

Montgomery in a way that resembles banishment. 

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15-10958 Opinion of the Court 47

erroneous given the evidence in the record. But even so, we cannot 

say that Mr. McGuire established that the restrictions are so severe 

that they resemble banishment and effectively cast registrants out 

of the community. The evidence of record demonstrates that 

registrants have remained able to find housing and jobs in 

Montgomery. As the district court found, of the approximately 430 

registrants in Montgomery, only three were homeless. This means 

that more than 99 percent of the individuals required to register in 

Montgomery were able to find housing. Approximately half of the 

registrants in Montgomery were able to find jobs. And of the half 

who were not working, the district court explained that some were 

not actively seeking work (perhaps because they were retired, 

attending school, or physically unable to work). The question is not 

whether there are houses or jobs off-limits to registrants because of 

the exclusion zones; the question is whether there are houses or 

jobs sufficiently open to them notwithstanding the exclusion 

zones. Obviously there are, and Mr. McGuire does not point to any 

evidence that the available houses or jobs are so undesirable that 

they should not be counted.

Nothing in ASORCNA bars registrants from going into 

exclusion zones for any purpose besides employment or 

establishing a residence, as defined in the statute. And ASORCNA 

does not restrict registrants from going into non-exclusion zones as 

much as they like, as long as they aren’t conducting an “overnight 

visit” with a minor. See Ala. Code § 15-20A-4(14); id. § 15-20A11(d).

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48 Opinion of the Court 15-10958

ASORCNA does not banish registrantsfrom the jurisdiction, 

whether a city or a state, or “expel[] [them] from the community.” 

Smith, 538 U.S. at 98. It does not cut them off from interacting with 

other adults, or even with minors during the daytime. As the 

district court explained, registrants are “not barred from 

frequenting any part of the city during the day.” McGuire v. 

Strange, 83 F. Supp. 3d 1231, 1253 (M.D. Ala. 2019) (emphasis 

added). And “any part” includes all of the exclusion zones.

Registrants may enter the exclusion zones for any purpose 

except residency or employment there, so long as they do not 

exceed the specified frequency and duration limits. Mr. McGuire’s 

evidence about the restrictions’ effects on housing and 

employment prospects for registrants does not establish that 

registrants are effectively cast out of Montgomery in a way that 

resembles banishment.27

27 We note the Sixth Circuit’s decision holding that a Michigan law establishing 

exclusion zones for sex offenders resembled banishment. See Doe v. Snyder, 

834 F.3d 696, 701–02 (6th Cir. 2016). But the Michigan law barred registrants 

from engaging in a broader range of conduct in the exclusion zones. It 

prohibited registrants not only from living or working in exclusion zones but 

also from “loitering” in these areas. Id. at 698 (internal quotation marks 

omitted). It also effectively barred registrants from working any job that 

required “traveling from jobsite to jobsite” because “work will surely take 

place within a school zone at some point.” Id. at 702. In contrast, ASORCNA 

imposes no bar on loitering, and registrants may hold jobs that occasionally 

require them to perform tasks inside, or to cross through, an exclusion zone. 

Given the differences, even after considering the Sixth Circuit’s analysis, we 

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b. Affirmative Disability or Restraint 

We next ask whether the residency and employment 

restrictions impose an affirmative disability or restraint. We accept,

and the Attorney General seems to concede, that these restrictions 

impose some affirmative disability or restraint by limiting where 

registrants may live or work.

In considering whether the legislative scheme imposes an 

affirmative disability or restraint, we ask “how the effects of the 

[law] are felt by those subject to it.” Smith, 538 U.S. at 99–100. If 

the restraint imposed is only “minor and indirect, its effects are 

unlikely to be punitive.” Id.

In Smith, the Court concluded that Alaska’s registration and 

notification scheme imposed no affirmative disability or restraint. 

The Court began by noting that because the scheme imposed no 

physical restraint, it did not “resemble the punishment of 

imprisonment, which is the paradigmatic affirmative disability or 

restraint.” Id. The Court further concluded that the scheme did not 

impose any other type of affirmative disability or restraint. It 

explained that Alaska’s scheme “[did] not restrain activities sex 

offenders may pursue” and left them “free to change jobs or

are not persuaded that Alabama’s residency and employment restrictions 

resemble banishment. Cf. Shaw v. Patton, 823 F.3d 556, 567–68, 577 (10th Cir. 

2016) (holding that a 2,000-foot residency restriction did not cause the plaintiff 

to be “expelled from a community” although he was restricted from living in 

some areas, and the statute also contained a 500-foot loitering provision).

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50 Opinion of the Court 15-10958

residences,” meaning they could “live and work as other citizens.”

Id. at 100–01. The Court determined that the record contained no 

evidence that the Alaska Act had “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.” Id. at 100.

In this case, the district court found that ASORCNA’s 

residency and employment restrictions imposed “direct . . . 

restraints and disabilities.” McGuire, 83 F. Supp. 3d at 1258. But the 

imposition of an affirmative disability or restraint “does not

inexorably lead to the conclusion that the government has imposed 

punishment.” Hendricks, 521 U.S. at 363 (internal quotation marks 

omitted). Rather, we must consider “the degree of the restraint 

involved in light of the legislature’s countervailing nonpunitive 

purpose,” meaning we also must consider “whether the law is 

rationally connected to a nonpunitive purpose, and whether it is 

excessive in relation to that purpose.” Doe v. Miller, 405 F.3d 700,

721 (8th Cir. 2005). As we explained, Mr. McGuire presented 

evidence that the residency and employment restrictions impose 

some housing and occupational disadvantages on registrants in 

Montgomery by limiting where they can live and work. All 

residency and employment restrictions do. But as we explain in 

more detail below, ASORCNA’s residency and employment 

restrictions are rationally connected to a nonpunitive purpose and 

are not excessive in relation to that purpose. After weighing the 

degree of disability imposed and the legislature’s nonpunitive 

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purpose, we conclude that the affirmative disability or restraint 

imposed by the residency and employment restrictions is not 

sufficiently punitive to override the legislature’s expressed intent to 

create a civil, nonpunitive scheme. See Shaw v. Patton, 823 F.3d 

556, 570 (10th Cir. 2016) (concluding that Oklahoma’s 2,000-foot 

residency restriction did “not amount to a disability or restraint 

that has a punitive effect”).

c. Traditional Goals of Punishment 

Mr. McGuire argues that the residency and employment 

restrictions are punitive because they further two traditional goals 

of punishment: deterrence and retribution. But the restrictions do 

not have such a strong deterrent or retributive effect that it renders

them punitive.

Whether the statutory scheme “promotes the traditional 

aims of punishment” is the third factor the Supreme Court 

considered in Smith. 538 U.S. at 97. The traditional aims, or 

theories, of punishment are deterrence and retribution. See 

Hudson v. United States, 522 U.S. 93, 101 (1997).

The deterrence theory of punishment refers to “the 

prevention of criminal behavior by fear of punishment.”

Deterrence, Black’s Law Dictionary (10th ed. 2014). The Supreme 

Court’s decision in Smith tells us little about how to determine 

whether a statutory scheme furthers deterrence. Alaska conceded 

that its registration and notification scheme promoted deterrence, 

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52 Opinion of the Court 15-10958

so the Court did not need to decide the question. Smith, 538 U.S. 

at 102.

The residency and employment restrictions promote the 

goal of deterrence, Mr. McGuire contends, by imposing an 

additional penalty for past sex offenses and thus preventing future 

crimes. We accept that the restrictions in some sense function as a 

deterrent by preventing future crime. As the statutory text reflects, 

the Alabama legislature intended the restrictions to protect 

children by preventing future sex offenses, suggesting that the 

legislature understood the restrictions would prevent, or deter, 

future crimes. See Ala. Code § 15-20A-2(1), (5).

Even though the residency and employment restrictions 

have some deterrent effect, we cannot say that they are so punitive 

that they override the legislature’s intent to enact a civil scheme. 

The registrants in Smith pointed to the concession that Alaska’s 

scheme promoted deterrence to argue that the law was punitive. 

But the Court rejected the argument as “prov[ing] too much.”

Smith, 538 U.S. at 102. Because “[a]ny number of governmental 

programs might deter crime without imposing punishment,” the 

Court cautioned, “[t]o hold that the mere presence of a deterrent 

purpose renders such sanctions criminal would severely 

undermine the Government’s ability to engage in effective 

regulation.” Id. (alteration adopted) (internal quotation marks 

omitted).

The retribution theory of punishment reflects that it is 

“fitting and just that one who has caused harm to others should 

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15-10958 Opinion of the Court 53

himself suffer for it.” Wayne R. LaFave, Substantive Criminal Law 

§ 1.5(a)(6) (2d ed. 2003). “A statute is retributive if it is intended to 

express condemnation for a crime and to restore moral balance.”

Shaw, 823 F.3d at 571.

Mr. McGuire argues that the residency and employment 

restrictions advance the goal of retribution because the restrictions 

“are not tailored to the crime, the offender, the victim, the length 

of time since the crime, or any other metric,” and thus they must 

be “a blunt and indiscriminate tool designed simply to punish 

registrants for past offenses.” Appellant’s Suppl. Br. at 38. 

The residency and employment restrictions in ASORCNA 

may have a retributive effect, to some extent. The restrictions are 

imposed on registrants solely because of their earlier criminal 

convictions, prompting one court to infer that they reflect societal 

condemnation for a registrant’s underlying crime. See Shaw, 

823 F.3d at 571. But we find any expression of condemnation 

insufficiently clear or strong to negate the legislature’s stated 

nonpunitive intent.

The fact that the statutory scheme may have had a 

retributive effect did not convince the Supreme Court in Smith that 

the scheme was so punitive in effect that it overrode the 

legislature’s civil intent. 538 U.S. at 102. Under Alaska’s registration 

scheme, the scope of a registrant’s reporting requirement 

depended solely on the nature of his underlying crime or crimes. A

person who committed a single, non-aggravated sex crime was 

required to register annually as a sex offender for 15 years. Id. at 90.

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54 Opinion of the Court 15-10958

But a person who committed an aggravated sex offense, or two or 

more sex offenses, was required to register quarterly as a sex 

offender for life. Id. Because the duration of the duty to register 

depended on the nature of the sex offender’s underlying crime 

rather than an individualized assessment of the risk he posed, the 

Ninth Circuit held that Alaska’s registration requirement had a 

retributive purpose and was punitive in effect. Id. at 102.

The Supreme Court disagreed. It acknowledged that the 

Alaska statute differentiated among registrants based on the nature 

of the underlying criminal conduct—whether the offense was 

aggravated or repeated. Id. Still, the Court determined that the 

Ninth Circuit “was incorrect to conclude that the Act’s registration 

obligations were retributive.” Id. The Court explained that the 

registration requirement was “reasonably related to the danger of 

recidivism” in a way that was “consistent with the regulatory 

objective.” Id. The Court also recognized: “The legislature’s 

findings are consistent with grave concerns over the high rate of 

recidivism among convicted sex offenders and their dangerousness 

as a class.” Id. at 103. “The risk of recidivism posed by sex offenders 

is frightening and high.” Id. (internal quotation marks omitted). 

Although Alabama imposes the restrictions on registrants as 

a class without making individualized risk assessments, following 

Smith, we conclude that “[t]he Ex Post Facto Clause does not 

preclude a State from making reasonable categorical judgments 

that conviction of specified crimes should entail particular 

regulatory consequences.” Id. As we explain below, the restrictions 

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have a rational connection to a nonpunitive purpose and are not 

excessive. 

d. Rational Connection to a Nonpunitive Purpose 

We next consider whether the residency and employment 

restrictions lack a rational relationship to a nonpunitive purpose. 

This inquiry is a most—if not the most—significant factor. Smith,

538 U.S. at 102.28 In Smith, the Supreme Court held that this factor 

was satisfied when the purpose of the sex offender registration and 

notification legislation was to protect public safety by “alerting the 

public to the risk of sex offenders in their community.” Id. at 102–

03 (alteration adopted) (internal quotation marks omitted). We 

conclude that ASORCNA’s residency and employment restrictions 

are likewise consistent with the nonpunitive purpose of promoting 

public safety. 

The Attorney General argues that the residency and 

employment restrictions protect public safety because (1) sex 

offenders are likely to commit future offenses against children, and 

(2) the restrictions prevent future sex offenses against children by 

keeping registrants away from children. Mr. McGuire disagrees 

and says that the record evidence established that sex offenders 

have lower recidivism rates than the Attorney General suggests 

and that creating zones of exclusion does not actually protect 

28 We have described this factor “as the most ‘significant’ one in the ex post 

facto analysis.” Waldman v. Conway, 871 F.3d 1283, 1294 (11th Cir. 2017) 

(emphasis added) (quoting Smith, 538 U.S. at 102).

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56 Opinion of the Court 15-10958

children from future sex crimes. Importantly, though, with respect 

to this factor, the question is not whether the weight of the 

evidence shows that sex offenders are likely to recidivate or 

whether residency and employment restrictions in fact prevent 

future sex crimes. Instead, our inquiry is limited to whether it 

would be rational for a legislature to draw these conclusions.Given 

the narrow scope of our inquiry, we find a rational connection to a 

nonpunitive purpose here.

To begin, we conclude it was rational for the Alabama 

legislature to conclude that sex offenders pose a risk of committing 

future sex crimes against children. The Attorney General points to 

research in the record showing that sex offenders generally pose a 

greater threat of committing future sex crimes than the general 

population does, including research showing that sex offenders are 

four times more likely than non-sex offenders to be rearrested for 

a sex crime after release from prison. 

Mr. McGuire responds that social science research in the 

record indicates that sex offenders may have lower recidivism rates 

than previously thought. But we need not resolve this dispute

about the relative rate of recidivism for sex offenders. Again, to 

apply this factor, we simply ask whether it was rational for the

Alabama legislature to conclude that sex offenders are more likely 

than the general population to commit future sex crimes. And 

based on evidence in this record, we cannot say that it was 

irrational.

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Mr. McGuire also argues that the residency and 

employment restrictions lack a rational relationship to the State’s 

legitimate purpose because, he asserts, registrants whose previous 

crimes involved adult victims are unlikely to commit future sex 

offenses against children. Record evidence reflects, however, that 

sex offenders are not specialists with respect to the gender and age 

of their victims. This is not to say that sex offenders whose prior 

offenses involved adults pose the same risk of committing future 

sex offenses against minors as do sex offenders whose prior offenses 

involved minors. But, again, because there is some evidence that 

adult sex offenders pose a greater threat to children than does the 

general population, we cannot deem irrational the Alabama 

legislature’s conclusion that children are protected by restraints on 

sex offenders whose previous victims were adults.

Next, we consider whether residency and employment 

restrictions are a reasonable way to protect children from future 

sex offenses. The assumption underlying these restrictions is that 

limiting registrants’ access to public areas that children frequent 

will reduce crime. The Attorney General introduced into evidence 

a study showing that removing registrants from the areas near 

schools and childcare centers reduced crime. Mr. McGuire points 

to other evidence showing that most sex crimes against children 

are committed not by a stranger who happens to encounter a child 

in public but instead by someone the child knows—which calls into 

question whether broad exclusion zones actually protect children 

from sex crimes. Mr. McGuire’s expert testified, and other evidence 

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in the record supports, that there is no significant relationship 

between a person reoffending and his proximity to schools or day 

care. 

The Attorney General presented evidence showing that 

residency and employment restrictions reduce the risk of future 

crimes, and we afford great deference to the Alabama legislature’s 

statement in ASORCNA that it intended for the Act to protect 

public safety, not to impose punishment. See Ala. Code §§ 15-20A2(1) (“[T]he number of sex offenders continues to rise. The 

increasing numbers coupled with the danger of recidivism place 

society at risk.”); 15-20A-2(3) (“Homeless sex offenders are a group 

of sex offenders who need to be monitored more frequently for the 

protection of the public. Homeless sex offenders present a growing 

concern for law enforcement due to their mobility.”); 15-20A-2(5) 

(noting that residency and employment restrictions “further[] the 

primary governmental interest of protecting vulnerable 

populations, particularly children”). Mr. McGuire failed to 

establish by the clearest proof that the residency and employment 

restrictions lack a rational connection to the nonpunitive purpose 

of protecting the public. This factor weighs against finding that 

these restrictions are punitive in effect.

e. Excessiveness 

The final factor requires us to consider whether Mr. 

McGuire has met his burden to show that ASORCNA’s residency 

and employment restrictions are excessive. A restriction is not 

excessive so long as the State has chosen a reasonable means to 

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achieve its nonpunitive objective. See Smith, 538 U.S. at 105. In this 

inquiry, we do not ask whether the legislature made the “best 

choice possible” to achieve its nonpunitive aim. Id. As the Supreme 

Court has cautioned, “[a] statute is not deemed punitive simply 

because it lacks a close or perfect fit with the nonpunitive aims it 

seeks to advance.” Id. at 103.

On appeal, Mr. McGuire argues that the residency and 

employment restrictions are excessive for three reasons: (1) they 

apply to all registrants for life; (2) other state laws are less severe; 

and (3) the restrictions caused Mr. McGuire to be homeless and 

unable to find a job. After considering these arguments, we 

conclude that Mr. McGuire has not carried his burden.

First, Mr. McGuire argues that the residency and 

employment restrictions are excessive because they apply to 

registrants for life. We understand Mr. McGuire to be saying that 

the restrictions are excessive because they apply to all registrants as 

a class without any individualized risk assessment.

The Supreme Court rejected a similar argument in Smith. 

The registrants argued that Alaska’s registration scheme was 

excessive because it applied to all convicted sex offenders without 

regard to their future dangerousness. Id. But the Court rejected this 

argument, explaining that the Ex Post Facto Clause permits a State 

to make “reasonable categorical judgments that conviction of 

specified crimes should entail particular regulatory consequences”

and to “legislate with respect to convicted sex offenders as a class, 

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rather than require individual determination of their 

dangerousness.” Id. at 104. 

We thus cannot say that the residency and employment 

restrictions are excessive simply because Alabama applied them to 

registrants as a class without making any individual determinations

about dangerousness. Importantly, as we explained above, the 

legislature could reasonably try to advance its goal of protecting 

the public by creating a categorical rule that subjects registrants to 

residency and employment restrictions. See Part VI-B-1-c & d;

Shaw, 823 F.3d at 576 (holding that Oklahoma’s residency 

restriction was not excessive even though it created “a categorical 

rule for sex offenders”); Miller, 405 F.3d at 722 (rejecting argument 

that Iowa’s residency restriction was excessive because it applied to 

registrants as a class).

Second, Mr. McGuire argues that the residency and 

employment restrictions are excessive when combined because 

they are more severe than the restrictions imposed by other 

states.29 This argument rests on the premise that a state’s restriction 

may be shown to be excessive merely because of its severity in 

29 It appears that the other states’ laws that impose both residency and 

employment restrictions establish smaller exclusion zones, which extend 

between 300 and 1,000 feet around schools and daycare centers. See, e.g.,

O.C.G.A. § 42-1-15 (geographic residency and employment restrictions with 

1,000-foot exclusion zones); Mont. Code Ann. § 45-5-513 (geographic 

residency and employment restrictions for “high-risk sexual offender[s]” with 

300-foot exclusion zones); Tenn. Code Ann. § 40-39-211 (geographic residency 

and employment restrictions with 1,000-foot exclusion zones). 

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relation to other states’ restrictions or because other states have 

chosen less restrictive means to achieve their regulatory purpose. 

But Mr. McGuire cites no authority holding that such a showing 

satisfies a plaintiff’s burden. And we are not persuaded by this 

argument, which seems in tension with the role of the states as 

“laboratories for experimentation” that may “devise various 

solutions where the best solution is far from clear.” United States 

v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring); see 

also Smith, 538 U.S. at 105 (explaining that “[t]he excessiveness 

inquiry of our ex post facto jurisprudence is not an exercise in 

determining whether the legislature has made the best choice 

possible to address the problem it seeks to remedy,” but instead 

“whether the regulatory means chosen are reasonable in light of 

the nonpunitive objective”).

Third, Mr. McGuire says the residency and employment 

restrictions are excessive because of the difficulty he had finding a 

job or a house outside the exclusion zones. With this argument Mr. 

McGuire again seeks to establish that the residency and 

employment restrictions are punitive in effect through evidence of 

the law’s effect on himself alone. But, as we explained above, 

Supreme Court precedent forecloses this argument. See Young,

531 U.S. at 262. 

On the record before us, we conclude that Mr. McGuire did

not establish by the clearest proof that the residency and 

employment restrictions are so punitive in purpose or effect that 

they override the Alabama legislature’s stated nonpunitive intent. 

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Accordingly, we affirm the district court’s determination that the

retroactive application of the residency and employment 

restrictions does not violate the Ex Post Facto Clause.

2. Mr. McGuire Failed to Carry His Heavy Burden to Prove 

that the Homeless Registration Requirement Is 

Sufficiently Punitive in Purpose or Effect 

Next, we address ASORCNA’s homeless-reporting 

requirement. As a refresher, the Act requires homeless registrants 

to report in person every week and to identify the locations where 

they resided during the previous week and plan to reside in the 

upcoming week. See Ala. Code § 15-20A-12(b), (d). After 

considering the Mendoza-Martinez factors, we conclude that Mr. 

McGuire failed to establish by the clearest proof that the homeless 

registration restriction is so punitive in purpose or effect as to 

negate the legislature’s intent to deem it civil.

a. Resemblance to a Traditional Punishment 

Mr. McGuire argues that the homeless registration 

requirement resembles the traditional punishment of probation or 

parole.30 We disagree.

30 Although in Smith the Supreme Court discussed parole, it did not consider 

whether parole qualified as a traditional or historical punishment. See 538 U.S. 

at 101–02 (considering whether reporting requirements imposed an 

affirmative disability or restraint similar to probation or parole, not whether 

probation or parole had been regarded in our history and tradition as a 

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Probation and parole are closely related punishments.31

Individuals on probation and parole “do not enjoy the absolute 

liberty to which every citizen is entitled, but only conditional 

liberty properly dependent on observance of special probation [or 

parole] restrictions.” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) 

(alteration adopted) (internal quotation marks omitted). Probation 

and parole involve a series of mandatory conditions, which may 

include requiring a person to report regularly to law enforcement 

and to comply with other conditions including maintaining

employment, obtaining consent from a probation or parole officer 

before moving or changing jobs, and abstaining from drugs or 

alcohol. See Shaw, 823 F.3d at 565. When a probationer or parolee 

violates the conditions of his probation or parole, the supervising 

officer seeks revocation in a proceeding that is part of the original 

punishment). We assume for purposes of this appeal only that parole would 

qualify as a traditional or historical punishment. See Shaw, 823 F.3d at 565.

31 Parole refers to “[t]he conditional release of a prisoner from imprisonment 

before the full sentence has been served” and generally requires “that the 

parolee regularly report to a supervising officer for a specified period.” Parole, 

Black’s Law Dictionary (11th ed. 2019). Probation refers to “[a] court-imposed 

criminal sentence that, subject to stated conditions, releases a convicted 

person into the community instead of sending the criminal to jail or prison,

usu[ally] on condition of routinely checking in with a probation officer over a 

specified period of time.” Probation, Black’s Law Dictionary (11th ed. 2019).

Succinctly, “[p]arole is based on good conduct in the penitentiary while 

probation is set as a substitute for incarceration.” 59 Am. Jur. 2d Pardon &

Parole § 8 (2016).

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offense. See Smith, 538 U.S. at 102; Griffin, 483 U.S. at 874; Black v. 

Romano, 471 U.S. 606, 611 (1985).

It is certainly true that registrants, like probationers and 

parolees, are subject to periodic reporting requirements. But 

ASORCNA’s homeless registration requirement does not so 

closely resemble probation or parole that “the public [would]

recognize” it as a punishment. Smith, 538 U.S. at 97. The homeless 

registration requirement is markedly different from probation and 

parole in two ways. First, the registration requirement is limited to 

a reporting. It does not entail the type of supervision that is a 

hallmark of probation and parole. Homeless registrants are not, for 

example, required to maintain employment, obtain consent before 

moving or changing jobs, or abstain from drugs or alcohol. Second, 

the consequences of violating the homeless reporting requirement 

are different from the consequences of probation and parole 

violations. With probation and parole, a violator of a term or

condition of supervision may be imprisoned for the original crime.

See Romano, 471 U.S. at 609, 611. By contrast, if a homeless 

registrant fails to comply with the weekly reporting requirement, 

he may be subjected to a criminal prosecution for violation of 

ASORCNA, separate and apart from his original offense. See Ala. 

Code § 15-20A-12(f); see also Smith, 538 U.S. at 101–02. 

b. Affirmative Disability or Restraint 

The second factor requires us to consider whether the 

homeless reporting requirement imposes an affirmative disability 

or restraint. Even though the in-person weekly reporting 

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requirement imposes an affirmative disability or restraint, we 

cannot say that the requirement is punitive. 

In assessing whether the weekly, in-person reporting 

requirement imposes an affirmative disability or restraint, we look 

to precedent addressing whether other sex offender registration 

schemes imposed these burdens. In Smith, the Supreme Court held 

that Alaska’s scheme requiring yearly or quarterly registration by 

mail imposed no affirmative disability or restraint. 538 U.S. at 91, 

100–101. Likewise, in W.B.H., we held that a federal law requiring

sex offenders to register in person four times per year imposed no 

affirmative disability or restraint. See 664 F.3d at 857–58. Even 

though the in-person reporting requirement was “inconvenient,” 

we concluded that no affirmative disability or restraint resulted 

because the quarterly in-person reporting requirement did not 

prohibit registrants from changing residences, jobs, or student 

status without prior approval and “only require[d] that changes be 

reported.” Id. at 857.

The reasoning in Smith and W.B.H. perhaps suggests that 

the homeless reporting requirement imposes no affirmative 

disability or restraint. True, ASORCNA requires homeless 

registrants to provide regular updates to law enforcement officers, 

but they remain able to move into a fixed residence and to change 

where they stay throughout the week without obtaining prior 

approval. Still, ASORCNA’s weekly reporting requirement is more 

burdensome than the registration schemes reviewed in Smith and 

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W.B.H. because neither case considered a weekly reporting 

requirement or its effect specifically on homeless individuals.

Given the reporting frequency, we are persuaded that the 

homeless registration requirement imposes an affirmative 

disability or restraint. But even considering this factor, we cannot 

say that the homeless registration requirement is so punitive in 

effect that it overrides the legislature’s nonpunitive intent. See 

Hendricks, 521 U.S. at 363 (explaining that the imposition of an 

affirmative disability or restraint does not necessarily mean that a 

restriction is punitive). We must weigh the extent of the disability 

or restraint that the weekly registration requirement imposes on 

homeless registrants against the legislature’s nonpunitive purpose 

of protecting the public. See Miller, 405 F.3d at 721. As we explain 

below, the weekly registration requirement has a rational 

connection to the nonpunitive purpose of protecting the public and 

is not excessive in relation to that purpose. In the circumstances 

before us, even though the law imposes an affirmative disability or 

restraint, we conclude that it is not sufficiently punitive to negate 

the legislature’s intent. 

c. Traditional Goals of Punishment 

Turning to the next factor, we ask whether the homeless 

registration requirement furthers a traditional goal of punishment.

We see no sufficiently strong deterrent or retributive effect to 

render the homeless registration requirement punitive. 

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We accept that the requirement has a general deterrent 

effect by potentially preventing future crime. Indeed, the Alabama 

legislature expressly stated that it imposed the more frequent 

reporting requirement for homeless registrants “for the protection 

of the public,” Ala. Code § 15-20A-2(3), suggesting it understood 

that the reporting requirement would prevent registrants who 

were homeless from committing future crimes. But Smith

recognized that governmental programs might deter crime 

without imposing punishment. 538 U.S. at 102. So it cannot be true 

that the presence of some general deterrent effect establishes that 

the registration requirement is punitive. Sex offender restrictions 

and requirements generally are intended to protect the public by 

reducing the number of future crimes that sex offenders commit. 

If that made them punitive, none would survive judicial scrutiny.

See id. (“To hold that the mere presence of a deterrent purpose 

renders such sanctions criminal would severely undermine the 

Government’s ability to engage in effective regulation.” (alteration

adopted) (internal quotation marks omitted)).

We agree with Mr. McGuire that, like the residency and 

employment restrictions, the homeless registration requirement 

furthers the goal of retribution to some extent. See Shaw, 823 F.3d 

at 572. For a restriction to be so retributive that it constitutes 

punishment, though, the statute’s effect must “lack[] a reasonable 

relationship to non[]punitive objectives.” Id. As we explain when 

we apply the next factor, the Alabama legislature could rationally 

set out to protect public safety by requiring weekly registration 

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from homeless registrants. In light of the rational connection 

between the reporting requirement and protecting public safety, 

this factor weighs against a finding of punitive effect.

d. Rational Connection to a Nonpunitive Purpose 

Without a doubt, Alabama’s homeless registration 

requirement has a rational connection to a nonpunitive purpose.

As the Supreme Court recognized in Smith, requiring registrants 

to report to law enforcement is rationally connected to the 

legitimate, nonpunitive purpose of promoting public safety. See 

538 U.S. at 102–03. It therefore is rational for a state to require 

registrants to report periodically to law enforcement to verify their 

information as well as to report when information changes—for 

example, after changing where they stay.

Relatedly, because homeless registrants lack a fixed address, 

they may be more transient than other registrants. To ensure that 

law enforcement and the public have accurate information about 

these registrants’ whereabouts and to protect public safety, a state 

legislature could rationally conclude that homeless registrants need 

to report more frequently. See Ala. Code § 15-20A-2(3) (“Homeless 

sex offenders . . . need to be monitored more frequently for the 

protection of the public.”). Whether or not we agree with the 

legislature’s conclusion, it was not an unreasonable one. See Shaw, 

823 F.3d at 572. 

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e. Excessiveness 

As to the final factor, Mr. McGuire has not shown that the 

reporting requirement is excessive. Given the requirement’s 

rational connection to a nonpunitive purpose, Mr. McGuire bears 

the burden to show that the requirement is nonetheless excessive

in relation to this purpose. But he does not argue that the frequency 

or manner of reporting imposed upon homeless registrants—inperson reporting once per week—is excessive in light of this 

nonpunitive purpose.32

On the record before us, we conclude that Mr. McGuire 

failed to establish by the clearest proof that the weekly reporting 

requirement for homeless registrants is sufficiently punitive to 

negate the Alabama legislature’s stated intention to enact a civil 

regulatory scheme. We thus affirm the district court’s judgment 

32 On appeal, Mr. McGuire focuses his argument on why it was excessive for 

Alabama to require homeless registrants who live in cities to report in person 

twice per week (once each week to city law enforcement and once each week 

to county law enforcement). See Appellant’s Br. at 34 (arguing that the 

homeless registrant requirement is excessive because, due to the dual

reporting requirement, “homeless registrants must also report twice per week, 

amounting to a minimum of 112 registrations per year”). But the Alabama 

legislature has removed the homeless registrants’ dual reporting requirement.

See 2015 Ala. Laws 463. As explained above, we limit our analysis to the 

version of ASORCNA currently in effect, which requires homeless registrants 

to report 56 times per year (four quarterly registrations and 52 weekly 

registrations). See supra Section IV. 

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that the weekly reporting requirement does not violate the Ex Post 

Facto Clause.

3. Mr. McGuire Failed to Carry His Heavy Burden to Prove 

that the Travel Notification Requirement Is Sufficiently 

Punitive in Purpose or Effect33 

Next is ASORCNA’s travel notification requirement.

ASORCNA requires a registrant to provide notice to law

enforcement before he may “temporarily leave[]” his county of 

residence for three or more consecutive days. Ala. Code § 15-20A15(a). After applying the Mendoza-Martinez factors, we conclude 

that Mr. McGuire has failed to show by the clearest proof that this 

requirement is punitive.

Mr. McGuire argues that the travel notification provision 

resembles probation or parole because it (1) bars registrants from 

spontaneous travel by requiring them to give notice at least three 

business days before traveling and (2) requires registrants to 

receive permission before traveling. But because ASORCNA, as 

33We continue to weigh the same factors to evaluate the remaining challenged 

provisions. But because the parties’ arguments for each of the remaining 

challenged provisions are less complex, we cease using separate subheadings

as we discuss each factor.

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amended, imposes neither restriction, we hold that it does not 

resemble probation or parole.34

First, Mr. McGuire contends that the travel notification 

provision restricts registrants from any form of spontaneous travel 

because they must notify law enforcement at least three business 

days before traveling. But he slightly misreads ASORCNA with 

respect to domestic travel. The law permits registrants to give 

notice within three business days of such travel. Id. §§ 15-20A-4(9),

15-20A-15(a). Because a registrant may give notice immediately 

before departing on a trip, we reject Mr. McGuire’s argument that 

the provision resembles probation or parole by restricting 

spontaneous travel. 

Mr. McGuire also argues that because he must disclose in 

advance where he will be staying, he cannot spontaneously decide 

to stay at a different hotel or in a different town. Mr. McGuire

argues that innocuous changes in travel plans may trigger felony 

violations. But barring registrants from making spontaneous 

changes to their travel plans does not mean the travel notification 

requirement resembles probation or parole. Only “knowing[]” 

violations of the travel restrictions are punishable as felonies. Ala. 

Code § 15-20A-15(h). Also, allowing a registrant to travel to a 

destination different from the one disclosed in advance would 

34 As we have mentioned, permission to travel is no longer required in light of 

the 2017 amendments to ASORCNA, but notification of intent to travel is 

required. See 2017 Ala. Laws 414.

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thwart the regulatory purpose of informing local authorities where 

the registrant would be and allowing them to inform law 

enforcement in that other location.

Mr. McGuire contends that the travel notification provision 

resembles probation or parole because it requires registrants to 

obtain permission from law enforcement before traveling. Under 

the amended version of ASORCNA, however, no permission is 

required. A registrant must report to his county sheriff to 

“complete and sign a travel notification document” before 

traveling outside his county of residence for three or more days. Id.

§ 15-20A-15(a). But ASORCNA gives the sheriff no discretion or 

authority to forbid a registrant who completes the travel 

notification form from leaving the county. Id. § 15-20A-15(a), (d). 

Mr. McGuire’s argument that law enforcement might do so rests 

on unfounded speculation. We therefore reject his argument that 

this provision resembles probation or parole. 

Turning to the second factor, the travel notification 

provision places some burden on registrants by requiring them to 

report in person before traveling. But because ASORCNA, in its 

current form, requires registrants to report in person to law 

enforcement only once before a trip, we cannot say that the 

reporting requirement imposes a burden rising to the level of an 

affirmative disability or restraint. See W.B.H., 664 F.3d at 857 

(addressing why in-person reporting requirement did not impose 

affirmative restraint). 

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Now the third factor. Even if we assume that the travel 

notification provision has some deterrent effect, that effect does 

not make the provision punitive because the “mere presence” of a 

deterrent effect does not make a statute punitive. See Smith, 

538 U.S. at 102 (internal quotation marks omitted). Likewise, even 

if the travel notification serves some retributive purpose, the 

provision is not punitive because, as we conclude below, it has a 

rational connection to a nonpunitive purpose and is not excessive. 

See id.

As to the fourth factor, the travel notification requirement 

has a rational connection to a nonpunitive purpose. The Attorney 

General argues that requiring a registrant to report travel outside 

the county “[e]ncourages personal contact with law enforcement” 

and “[p]rovides for continuity of contact between jurisdictions.”

Appellees’ Br. at 47. In requiring registrants to disclose their travel 

plans to law enforcement shortly before traveling, the provision 

serves these rational purposes.

With respect to the final factor, the travel notification 

provision is not excessive. The provision appropriately serves the 

purpose of protecting public safety by requiring that registrants 

give notice shortly before traveling, with some flexibility (within 

three days) about when the notification must occur. Because the 

scope of the restriction is “reasonable in light of the nonpunitive 

objective,” Smith, 538 U.S. at 105, it is not excessive.

After considering the relevant factors, we conclude that Mr. 

McGuire has failed to establish by the clearest proof that the travel 

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notification restriction is so punitive in purpose or effect that it 

overrides the legislature’s stated nonpunitive intent.

4. Mr. McGuire Failed to Carry His Heavy Burden to 

Prove that the Direct Community Notification 

Requirement Is Sufficiently Punitive in Purpose or Effect 

The last provision of ASORCNA Mr. McGuire challenges is 

the requirement that local law enforcement notify a registrant’s 

neighbors that a sex offender plans to establish or has established a 

residence nearby. Looking to the Supreme Court’s decision in 

Smith, we conclude that Mr. McGuire has failed to show by the 

clearest proof that this provision is punitive.

Mr. McGuire argues that the direct community notification 

requirement resembles a traditional shaming punishment. Some 

historical punishments, like forcing an offender to wear a sign 

broadcasting his offense, were meant to inflict public disgrace. See 

Smith, 538 U.S. at 97–98. The required community notification 

bears at least an initial resemblance to traditional shaming 

punishments. When a registrant establishes a new residence, local 

law enforcement is to mail or hand deliver to a registrant’s 

neighbors a flyer that discloses the registrant’s name, address, 

photograph, and status as a sex offender.35 See Ala. Code §§ 15-20A35 ASORCNA also provides for a second type of community notification 

through the State’s maintenance of an online database for the public to access 

information about registrants. See Ala. Code § 15-20A-8(a). The Supreme 

Court held in Smith that including a registrant’s information in an online 

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8(a), 15-20A-21(a), (b). We recognize that a registrant will likely 

experience a degree of humiliation and public disgrace when these 

flyers are distributed to his neighbors. See Smith, 538 U.S. at 98 

(recognizing registrants may face stigma as a result of the public 

being notified about their status as sex offenders).

But Smith is clear that our inquiry does not end there. Even 

though the registrants in Smith experienced public stigma due to

being listed in Alaska’s internet database of sex offenders, the Court 

concluded that Alaska’s community notification scheme did not 

resemble a historical shaming punishment. Id. at 98–99. This was 

because registrants were not subjected to “face-to-face shaming.”

Id. at 98. Instead, any stigma resulted solely “from the 

dissemination of accurate information about a criminal record, 

most of which is already public.” Id. The Court analogized the way 

database did not resemble a historical shaming punishment. 538 U.S. at 99.

Smith compels us to conclude that this aspect of Alabama’s community 

notification is nonpunitive.

At least one court has determined that community notification through an 

internet registry database has a punitive effect. See, e.g, Commonwealth v. 

Muniz, 164 A.3d 1189, 1212 (Pa. 2017) (holding that Pennsylvania’s 

community notification requirements violated the Ex Post Facto Clauses of 

the United States and Pennsylvania constitutions when registrants were listed 

on a public internet website because the publication provision “when viewed 

in the context of our current internet-based world [is] comparable to shaming 

punishments”). But even after considering this decision, we conclude that 

Alabama’s use of an online registry is not punitive. 

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the public could access information in the database to “a visit to an 

official archive of criminal records” because a member of the public 

would receive information about a sex offender only after 

voluntarily taking several steps, including “going to the 

Department of Public Safety’s Web site, proceed[ing] to the sex 

offender registry, and then look[ing] up the desired information.”

Id. at 99.

The Supreme Court’s decision in Smith does not answer 

directly whether ASORCNA’s direct community notification 

resembles public shaming.36 On the one hand, Smith’s discussion 

of “face-to-face shaming” suggests that ASORCNA’s notification 

36 Nor does our decision in W.B.H. answer whether Alabama’s direct 

community notification provision resembles a historical punishment. In 

W.B.H., an individual who was required under SORNA to register due to a 

juvenile conviction for a sex offense claimed that SORNA’s community 

notification requirement was punitive. 664 F.3d at 851. He argued that 

including his information in a government sex offender database on the 

internet resembled a traditional shaming punishment because his underlying 

juvenile conviction for a sex offense was not a public record. Id. at 856. We 

concluded that placing his information in a database would not subject him to 

face-to-face public shaming. Id. We stated that “[e]ven if the fact that a person 

had been convicted of a sex offense as a youthful offender were to be 

permanently sealed under state law, dissemination of that truthful 

information in a [] registry” would not be punitive. Id. Because W.B.H. 

involved a challenge to a community notification scheme that involved 

dissemination of information about registrants through an internet database 

only, however, the opinion did not address whether direct community 

notification in which the government, unsolicited, sends out information 

about a registrant’s presence to his neighbors would resemble a traditional 

shaming punishment.

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scheme does not resemble a historical punishment because a 

registrant ordinarily is not present when his neighbors receive the 

notice disclosing his status as a sex offender. Id. at 98. On the other 

hand, other parts of Smith’s analysis suggest that ASORCNA’s 

requirement does resemble public shaming. Direct community 

notification under ASORCNA is substantially different from the 

public’s searching out information either online or in a physical 

archive because information about registrants is automatically sent 

to their neighbors without requiring the neighbors to take any 

steps to obtain the information. See Ala. Code § 15-20A-21(a). So,

the Court’s analogy in Smith does not hold here.

We leave the difficult question whether the Act’s 

community notification requirement sufficiently resembles 

historical shaming for another day, however. Even assuming that 

it does, Mr. McGuire still has not met his heavy burden to show 

that it is punitive in purpose or effect when we consider the other 

factors.

For the second factor, the direct community notification 

requirement does not impose an affirmative disability or restraint.

The Supreme Court told us in Smith that a community notification 

provision “imposes no physical restraint.” 538 U.S. at 100. And 

although community notification “may have a lasting and painful 

impact on the convicted sex offender, these consequences flow not 

from [ASORCNA’s] . . . dissemination provision[], but from the 

fact of conviction, already a matter of public record.” Id. at 101.

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The third factor, too, weighs in the Attorney General’s

favor. Even if the community notification requirement has some 

deterrent effect, some deterrent effect does not establish that the 

measure is punitive. See id. at 102. And even if the community 

notification requirement in some sense promotes retribution, this 

factor on its own does not make the requirement punitive. See id.

It is beyond dispute that the direct community notification 

provision meets the fourth factor, a rational connection to a 

legitimate governmental purpose. It was rational for the Alabama 

legislature to conclude that requiring law enforcement to notify 

neighbors, schools, and childcare centers of a registrant’s presence 

would serve the civil purposes of promoting public safety and 

reducing recidivism.37 See Ala. Code § 15-20A-2(1) (“This release of 

information creates better awareness and informs the public of the 

presence of sex offenders in the community, thereby enabling the 

public to take action to protect themselves.”). As the Supreme 

Court said in Smith, such notification “has a legitimate nonpunitive 

purpose of public safety, which is advanced by alerting the public 

37 Some social science research in the record reflects that community 

notification may reduce recidivism. At the same time, other research of record 

suggests that community notification fails to reduce the recidivism rate for 

registrants. At trial, Mr. McGuire’s expert discussed some evidence indicating 

that notification can increase recidivism rates by making it more difficult for 

registrants to find jobs and stable housing and to enter personal or business 

relationships. We need not resolve the policy dispute about whether 

community notification actually reduces recidivism because it was rational for 

Alabama’s legislature to determine that it would.

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to the risk of sex offenders in their community.” 538 U.S. at 102–03 

(alteration adopted) (internal quotation marks omitted).

Finally, considering the fifth factor, we conclude that the

means of notification Alabama has chosen—mailing and hand 

delivering flyers identifying the registrant to nearby neighbors, 

schools, and childcare centers—can reasonably be expected to 

achieve Alabama’s nonpunitive objective of protecting the public.

There is no argument here that the direct community notification 

requirement is excessive due to the formatting of the flyer or the 

way that it displays information about the registrants. Indeed, a 

flyer contains only factual information about a registrant, such as 

his name, race, sex, date of birth, physical description, address, and 

a brief description of his underlying offense. See Ala. Code §§ 15-

20A-8, 15-20A-21. The inclusion of this information is entirely 

consistent with Alabama’s stated purpose: to inform the public 

about the registrant’s presence in the community. See id. § 15-20A2(1).

After weighing the factors, we conclude that Mr. McGuire 

failed to establish by the clearest proof that the direct community 

notification requirement is so punitive in purpose or effect that it

overrides the Alabama legislature’s intent to create a civil 

regulatory scheme. Even if we assume that the direct community 

notification resembles a historical punishment, we hold that Mr. 

McGuire failed to carry his heavy burden, particularly given the 

community notification requirement’s rational connection to a 

nonpunitive purpose that is not excessive in relation to that 

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purpose.38 Accordingly, we agree with the district court that the 

retroactive application of the direct community notification 

requirement does not violate the Ex Post Facto Clause.

VII. CONCLUSION 

We VACATE the district court’s judgment insofar as it 

involves Mr. McGuire’s claims that it is unconstitutional to apply 

retroactively the following provisions of the Alabama Sex Offender 

Registration and Community Notification Act, and REMAND 

WITH INSTRUCTIONS that it dismiss those claims as moot: (1) 

the identification-labeling requirement and (2) the dual registration 

requirements for homeless registrants and for registrants providing

travel notification.

We AFFIRM the district court’s judgment insofar as it rejects 

Mr. McGuire’s claims that it is unconstitutional to apply 

retroactively the following provisions of ASORCNA: (1) the 

residency and employment restrictions, (2) the homeless 

registration requirement, (3) the travel notification requirement, 

and (4) the community notification requirement.39

38 To the extent that it is necessary to do so, and we pass no judgment on 

whether it is, we have also considered how the community notification 

provision interacts with other provisions in ASORCNA and conclude that it is 

not punitive in effect. 

39 Also pending before the Court is Mr. McGuire’s motion to dismiss the 

Attorney General’s cross-appeal as moot. Because we have vacated and 

remanded with instructions to dismiss as moot the part of the district court’s 

judgment challenged in the cross-appeal, we DENY that motion.

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VACATED AND REMANDED IN PART, AFFIRMED IN 

PART. 

 

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