Smith v. Doe, 538 U.S. 84, 13 (2003)

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112

SMITH v. DOE

Opinion of Stevens, J.

729), to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U. S. 433 (1971).

It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction.

To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e. g., De Veau v. Braisted, 363 U. S. 144 (1960) (upholding prohibition of convicted felons from working for waterfront unions); Hawker v. New York, 170 U. S. 189 (1898) (upholding prohibition of doctors who had been convicted of a felony from practicing medicine). Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on him. See NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 191-192 (1967). And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e. g., N. J. Stat. Ann. § 45:1-21 (West Supp. 2002).

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