Cite as: 538 U. S. 84 (2003)
Souter, J., concurring in judgment
statement as to whether the offender . . . is in compliance with requirements of AS 12.63 or cannot be located." Alaska Stat. § 18.65.087(b) (2000).
By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur.
Justice Souter, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment.
As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called Kennedy-Ward test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United States v. Ward, 448 U. S. 242, 248-249 (1980); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). We have said that " 'only the clearest proof' " that a law is punitive based on substantial factors will be able to overcome the legislative categorization. Ward, supra, at 249 (quoting Flemming v. Nestor, 363 U. S. 603, 617 (1960)). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See Hudson v. United States, 522 U. S. 93, 113-114 (1997) (Souter, J., concurring in judgment). This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way.
The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from
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