Full opinion text
Opinion BAXTER, J. In In re Reed (1983) 33 Cal.3d 914 [191 Cal.Rptr. 658, 663 P.2d 216] (Reed), this court held that California’s law requiring lifelong registration as a convicted sex offender (see Pen. Code, § 290 et seq.) violated the “cruel or unusual punishment” clause of the California Constitution (art. I, § 17) as applied to one convicted of the misdemeanor of engaging in, or soliciting, lewd or dissolute conduct in a public place (§ 647, subd. (a) (§ 647(a)). Here, petitioner Leon Casey Alva was convicted of another sex-related misdemeanor, possession of child pornography, as a first offense. (§ 311.11, subd. (a).) He urges that mandatory lifetime sex offender registration for this crime similarly constitutes cruel and/or unusual punishment under both the state and federal Constitutions. We disagree. Indeed, developments since Reed persuade us that Reed itself was incorrectly decided and must be overruled. A necessary predicate to Reed’s holding was its conclusion that sex registration constitutes “punishment” within the meaning of California’s cruel or unusual punishment clause. The Reed majority conceded that “the Legislature may reasonably have intended . . . sex offender registration [to] serve as a law enforcement tool to facilitate criminal investigations.” (Reed, supra, 33 Cal.3d 914, 922.) Nonetheless, after purporting to apply the multifactor test set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 [9 L.Ed.2d 644, 83 S.Ct. 554] (Mendoza-Martinez), the Reed majority determined that sex registration was punitive. More recently, however, this court held in People v. Castellanos (1999) 21 Cal.4th 785 [88 Cal.Rptr.2d 346, 982 P.2d 211] (Castellanos) that sex offender registration is regulatory in both purpose and effect, and is thus not “punishment” for purposes of the state and federal ex post facto clauses (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9). Both the lead and concurring opinions in Castellanos concluded that Reed’s application of the Mendoza-Martinez test was not persuasive for ex post facto purposes. Nonetheless, Castellanos reserved the question whether Reed remained good law in the context of cruel and/or unusual punishment. Our concern on this account stemmed solely from a single high court decision, Austin v. United States (1993) 509 U.S. 602 [125 L.Ed.2d 488, 113 S.Ct. 2801] (Austin). Austin suggested, in a context far removed from sex offender registration laws, that a measure might impose “punishment” for purposes of the Eighth Amendment’s ban on cruel and unusual punishment even if it was not punitive for other constitutional purposes under the Mendoza-Martinez test. More recently still, the United States Supreme Court, placing extensive reliance on the Mendoza-Martinez test, has confirmed that Alaska’s sex offender registration act—and in particular, the statute’s provision for notification to the public about the registrant’s identity, crime, and whereabouts—is a regulatory law, not a punitive measure, for purposes of the federal ex post facto clause. (Smith v. Doe (2003) 538 U.S. 84 [155 L.Ed.2d 164, 123 S.Ct. 1140] (Smith).) When Reed was decided, only five states, including California, “require[d] any kind of sex offender registration.” (Reed, supra, 33 Cal.3d 914, 925.) Since that time, virtually every one of the United States has enacted such a law. Many were prompted by congressional legislation, adopted in the 1990’s, which conditions certain federal grants-in-aid on a state’s enactment of conforming sex offender registration laws. Almost without exception, the state and federal courts considering these state laws have found—both before and since Austin—that they are legitimate regulatory measures, designed to assist law enforcement and to protect the public, and are not punitive for purposes of constitutional proscriptions against cruel and/or unusual punishment. We now do the same. Even if Austin, supra, 509 U.S. 602, establishes a stricter test of “punishment” for Eighth Amendment purposes than might apply under other provisions of the federal Constitution, we conclude that California’s law requiring the mere registration of convicted sex offenders is not a punitive measure subject to either state or federal proscriptions against punishment that is “cruel” and/or “unusual.” In the case before us, the Court of Appeal affirmed the registration requirement against Alva. Under compulsion of Reed, supra, 33 Cal.3d 914, the Court of Appeal assumed that a sex offender registration requirement is punishment for purposes of our state’s prohibition of cruel or unusual punishment. However, the court found that requiring Alva to register as a sex offender is neither “cruel” nor “unusual” as applied to the facts surrounding his offense. Because we now conclude, contrary to Reed, that the registration requirement is not punishment at all for this purpose, we will affirm the judgment of the Court of Appeal. FACTS AND PROCEDURAL BACKGROUND After a 1999 municipal court trial, Alva was convicted of a misdemeanor count of possession of child pornography, a violation of section 311.11, subdivision (a). This statute makes it a public offense for any person, among other things, to possess or control any visual matter, “the production of which involve[d] the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct.” In other words, the prohibited matter must depict actual persons, who are actually under 18, engaged in actual or simulated sex acts, and the violator must know that this is so. Only the first violation of section 311.11, subdivision (a) is a misdemeanor; subsequent violations are felonies. (§311.11, subd. (b).) At a sentencing hearing on July 13, 1999, the court placed Alva on 36 months’ summary probation, with the conditions, among others, that he serve 60 days in jail (stayed pending completion of probation), pay fines totaling $1,550, and complete sexual deviancy therapy. As required by section 290, subdivision (a)(2)(A), the court also imposed a lifetime obligation that Alva register as a sex offender under subdivision (a)(1) of section 290. Alva’s appeal argued, among other things, that the sex offender registration requirement was cruel and/or unusual punishment as applied to the facts of his case. The appellate division of the superior court affirmed the judgment. Alva’s motion for rehearing, or in the alternative for certification to the Court of Appeal (see Cal. Rules of Court, former rule 63), was denied, and the appellate division issued its remittitur. Thereafter, Alva filed an original petition for writ of habeas corpus in the Court of Appeal, re-raising all the issues rejected in his appeal. The petition was summarily denied. We granted review and retransferred the matter to the Court of Appeal, Second Appellate District, Division Three, with instructions to order the Los Angeles County Probation Department to show cause before the Court of Appeal “why the requirement that [Alva] register as a sex offender is not cruel and/or unusual punishment under the United States and California Constitutions. (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Pen. Code, §§ 311.11, 290[,] [subdivision] (a)(2)(A); People v. Castellanos (1999) 21 Cal.4th 785 [88 Cal.Rptr.2d 346, 982 P.2d 211]; In re Reed (1983) 33 Cal.3d 914 [191 Cal.Rptr. 658, 663 P.2d 216].)” The Court of Appeal denied habeas corpus relief and discharged the order to show cause. First, the Court of Appeal agreed with the vast majority of non-California decisions that sex offender registration is not “punishment” for purposes of the Eighth Amendment’s proscription of “cruel and unusual punishments.” Second, though it questioned the continued viability of Reed, supra, 33 Cal.3d 914, in light of Castellanos, supra, 21 Cal.4th 785, the court concluded Castellanos had not overruled Reed's determination that sex offender registration is “punishment” for purposes of the California Constitution’s ban on “cruel or unusual punishment.” (Cal. Const, art. I, § 17.) Third, in an extensive analysis, the court determined that sex offender registration, even if “punishment,” is not “cruel or unusual” as applied either to the statutory offense of possession of child pornography or to the particular facts of Alva’s case. Both parties sought review. Alva urged that there was no evidence he is an actual threat to children, and that the “punishment” of sex offender registration is cruel and/or unusual in his case. Respondent argued that sex offender registration is not “punishment” at all within the scope of constitutional protections against punishments that are “cruel” and/or “unusual.” Noting such intervening developments as our decision in Castellanos, supra, 21 Cal.4th 785, respondent urged that we reexamine Reed, supra, 33 Cal.3d 914, in this context. We granted respondent’s petition, but denied Alva’s. We now agree with the Court of Appeal that for purposes of the Eighth Amendment, sex offender registration is a legitimate regulatory measure, not punishment, and thus falls outside the scope of the United States Constitution’s ban on cruel and unusual punishments. For similar reasons, and after careful reflection, we further conclude that Reed, supra, 33 Cal.3d 914, erred in holding that sex offender registration constitutes “punishment” for purposes of the California Constitution’s “cruel or unusual punishment” clause. We will therefore overrule Reed. DISCUSSION California has had some form of sex offender registration requirement since 1947. (See former § 290, as enacted by Stats. 1947, ch. 1124, § 1, p. 2562.) “As this court has consistently reiterated: ‘The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ [Citations.] .. .[][].. . The statute is thus regulatory in nature, intended to accomplish the government’s objective by mandating certain affirmative acts.” (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 [63 Cal.Rptr.2d 322, 936 P.2d 101] (Wright); see Castellanos, supra, 21 Cal.4th 785, 796 (lead opn. of George, C. J); Reed, supra, 33 Cal.3d 914, 919; In re Smith (1972) 7 Cal.3d 362, 367 [102 Cal.Rptr. 335, 497 P.2d 807]; Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825-826 [83 Cal.Rptr. 819, 464 P.2d 483]; see also People v. Ansell (2001) 25 Cal.4th 868, 886 [108 Cal.Rptr.2d 145, 24 P.3d 1174] (Ansell)) Now, as when Alva was convicted, subdivision (a)(1) of section 290 provides that every person convicted of an offense enumerated in subdivision (a)(2)(A)—including, since 1994, a violation of section 311.11, subdivision (a)—must register for life, so long as he or she lives, works, or studies in California, with the police chief of each city or town or the county sheriff of each unincorporated area, and the police chief of any public university or college campus, where he or she resides or is located. The registrant must provide, inter alia, his or her current residence and employment addresses, fingerprints and a current photograph, and the license plate number of every vehicle he or she owns or regularly drives, and related information as required by the California Department of Justice (Department). (§ 290, subds. (a)(l)(A)-(D), (e)(2)(A)-(C).) The offender must register anew within five working days of changing his residence or location (id., subd. (a)(1)(A)), and must update his registration within five working days after each birthday (id., subd. (a)(1)(D)). One who violates a registration requirement that is based on a misdemeanor conviction is guilty of a misdemeanor (id., subd. (g)(1)), and a “willful[]” violation is a continuing offense (id., subd. (g)(8)). The registration materials are forwarded to the Department. (§ 290, subd. (e)(3).) Except with respect to section 290.4(a)(1) registrants (see fn. 4, ante), “the statements, photographs, and fingerprints required by . . . section [290] shall not be open to inspection by the public or by any person other than a regularly employed peace officer or other law enforcement officer.” (§ 290, subd. (i).) Alva is not a section 290.4(a)(1) registrant, because a conviction for possession of child pornography in violation of section 311.11, subdivision (a)—on which Alva’s registration obligation is founded—is not among those offenses enumerated in section 290.4, subdivision (a)(1). The Eighth Amendment to the United States Constitution provides, in pertinent part, that “cruel and unusual punishments [shall not be] inflicted.” The parallel provision of the California Constitution declares that “[c]ruel or unusual punishment may not be inflicted.” (Cal. Const., art. I, § 17.) Though many state and federal courts have spoken on the subject (see discussion post), neither we nor the United States Supreme Court has considered the validity of a sex offender registration requirement under the federal proscription of cruel and unusual punishments. Two decades ago, however, when sex offender registration statutes were rare, this court addressed the state constitutional implications of such a scheme in Reed, supra, 33 Cal.3d 914. There a majority concluded that the state Constitution’s guarantee against “cruel or unusual punishment” precluded application of section 290 to the misdemeanor offense of engaging in, or soliciting, lewd or dissolute conduct in a public place (§ 647(a)). This holding required a preliminary determination whether sex offender registration was a form of “punishment” subject to the state constitutional guarantee against punishments that are “cruel or unusual.” To resolve that issue, the Reed majority purported to apply the multifactor test of “punishment” enunciated by the United States Supreme Court in Mendoza-Martinez, supra, 372 U.S. 144. Mendoza-Martinez suggested that a statute’s intent to impose punishment may appear on its face, or from its legislative history. (Mendoza-Martinez, supra, 372 U.S. 144, 169.) However, Mendoza-Martinez indicated, a measure’s punitive nature may also be discerned by weighing such factors as “[w]hether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.” (Id. at pp. 168-169, fns. omitted.) Assessing the sex offender registration requirement in light of these factors, the Reed majority concluded that registration is punishment. The majority conceded that “the Legislature may reasonably have intended . . . sex offender registration [to] serve as a law enforcement tool to facilitate criminal investigations” (Reed, supra, 33 Cal.3d 914, 922), and that registration of sex offenders has not historically been viewed as punishment (id. at p. 921), but concluded that these considerations were not dispositive. Instead, the Reed majority stressed its view that registration imposes an affirmative disability or restraint. Registration is punitive in its essential nature, the majority asserted, because, aside from the lifelong duties and obligations involved, it produces a stigma—an “ ‘ignominious badge’ ”—that may remain with the registrant forever, and also exposes the registrant to police compulsion in the form of “ ‘command performance^’ ” appearances in lineups. (Reed, supra, 33 Cal.3d 914, 920, italics omitted.) Moreover, the Reed majority reasoned, “[t]he third, fourth, and fifth factors enumerated in Mendoza-Martinez are readily satisfied,” at least when registration is imposed for the crime of public lewdness. (Reed, supra, 33 Cal.3d 914, 921-922.) That offense, the majority observed, requires lewd intent, and a resulting registration requirement thus comes into play only upon a finding of scienter. Moreover, said the majority, “the legislative intent was surely to deter recidivism by facilitating the apprehension of past offenders. [Citation.] And, of course, ‘the conduct to which [registration] . . . applies is already a crime.’ ” (Id. at p. 922.) Finally, the Reed majority was unpersuaded that registration was justified, despite its punitive incidents, by an alternative, nonpunitive purpose. First, the majority in Reed doubted that registration of sex offenders is, in fact, an effective law enforcement tool. In any event, the majority concluded, “the fact that a minimal or ‘rational’ basis may underlie the legislation is outweighed here by the fact that the penalty of registration is ‘excessive in relation to the alternative purpose assigned’ to it. [Citation.]” (Reed, supra, 33 Cal.3d 914, 922, italics added by Reed.) Developments since Reed persuade us that this analysis is no longer viable. We now conclude that a requirement of mere registration by one convicted of a sex-related crime, despite the inconvenience it imposes, cannot be considered a form of “punishment” regulated by either federal or state constitutional proscriptions against cruel and/or unusual punishment. Courts have had difficulty deciding how to determine when legislation imposes “punishment” for purposes of the several constitutional provisions to which that concept is relevant. But, with one exception discussed below, we and the United States Supreme Court have moved steadily away from the Reed perspective, both in general and with respect to sex offender registration statutes in particular. The factors set forth in Mendoza-Martinez, supra, 372 U.S. 144, remain relevant in a number of these constitutional contexts, but the ways in which they are applied are distinctly at odds with Reed’s, treatment. Thus, in People v. McVickers (1992) 4 Cal.4th 81 [13 Cal.Rptr.2d 850, 840 P.2d 955] (McVickers), we considered whether a statute requiring persons convicted of certain sex crimes to submit to blood tests for AIDS violated the state and federal ex post facto clauses, as applied to persons who had committed their crimes before the testing requirement was adopted. At issue was whether the statute had improperly increased the “punishment” for such crimes after their commission (see Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 110 S.Ct. 2715]) by means of “retrospective legislation with a punitive effect or purpose.” (McVickers, supra, at p. 85.) For the proper test of punishment, we looked at the outset not only to Mendoza-Martinez, supra, 372 U.S. 144, but to the plurality opinion in Prop v. Dulles (1958) 356 U.S. 86 [2 L.Ed.2d 630, 78 S.Ct. 590] (Trop). We noted the Prop plurality’s statement that “ ‘[i]n deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. . . . [A] statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.’ [Fns. omitted].” (McVickers, supra, 4 Cal.4th 81, 85, quoting Trop, supra, at p. 96 (opn. of Warren, C. J.).) Trap, discussed in greater detail below, is significant because it is one of the relatively few high court cases addressing what constitutes punishment for purposes of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Examining these factors, we reasoned that blood testing produces only slight intrusion, inconvenience, risk, and discomfort, not rising in its nature to the level of punishment. Further, we observed, the statute’s strictly limited disclosure provisions were not “punishment” in the form of ostracism, for unless the defendant offended again, the test results were disclosed only to the defendant, his attorney, and the Department (for use by the prosecution, if the test results were positive, to enhance punishment for a future offense). (McVickers, supra, 4 Cal.4th 81, 88.) We stressed that the statute had a legitimate nonpunitive purpose—preventing the spread of AIDS—and that its provisions were not excessive in relation to its goal. (Id. at pp. 88-89.) Thereafter, in Kansas v. Hendricks (1997) 521 U.S. 346 [138 L.Ed.2d 501, 117 S.Ct. 2072] (Hendricks), the United States Supreme Court addressed double jeopardy and ex post facto challenges to Kansas’s Sexually Violent Predators Act (Kansas Act), which provided for the involuntary confinement and treatment, beyond their prison terms, of certain dangerously disordered recidivist sex offenders. Both the ex post facto and double jeopardy arguments against the Kansas Act stemmed from the premise that the statute, despite its “civil” label, imposed new “punishment” for prior crimes. In rejecting the claim of “punishment,” the Hendricks majority addressed factors similar to those discussed in Mendoza-Martinez, supra, 372 U.S. 144. (See Hendricks, supra, 521 U.S. 346, 362-364.) In particular, the majority stressed that all presumptions favored the Kansas Legislature’s facial designation of the proceedings as “civil,” not “criminal” and punitive. “Although we recognize that a ‘civil label is not always dispositive,’ [citation],” the majority observed, “we will reject the legislature’s manifest intent only where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ ” (Id. at p. 361, quoting United States v. Ward (1980) 448 U.S. 242, 248-249 [65 L.Ed.2d 742, 100 S.Ct. 2636] (Ward); see also Seling v. Young (2001) 531 U.S. 250, 261 [148 L.Ed.2d 734, 121 S.Ct. 727].) In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [81 Cal.Rptr.2d 492, 969 P.2d 584] (Hubbart), we adhered closely to Hendricks, supra, 521 U.S. 346, in concluding that California’s Sexually Violent Predators Act, a statute similar to the Kansas Act, does not impose punishment for purposes of the state and federal ex post facto clauses. (Hubbart, supra, at pp. 1170-1179.) The same year we decided Hubbart, supra, 19 Cal.4th 1138, we directly addressed whether mandatory sex offender registration, as provided by section 290, constitutes “punishment.” In Castellanos, supra, 21 Cal.4th 785, 88 Cal.Rptr.2d 346, 982 P.2d 211, we rejected the defendant’s claim that state and federal guaranties against ex post facto legislation immunized him from registration under a provision of section 290 which became effective only after he committed his offense. All but one member of this court agreed that ex post facto principles were not implicated by application of the new registration provision to Castellanos’s earlier offense, because registration was not new or increased “punishment” for that crime. The lead opinion in Castellanos, supra, 21 Cal.4th 785, first extensively reviewed the United States Supreme Court’s post-Reed punishment jurisprudence. The opinion noted that the high court’s modem decisions had analyzed the concept of punishment somewhat differently in various constitutional contexts. In these circumstances, the opinion expressed uncertainty whether the multifactor test of Mendoza-Martinez, supra, 372 U.S. 144, was precisely applicable to the ex post facto clauses. (Castellanos, supra, 21 Cal.4th 785, 792-795 & fn. 5 (lead opn. of George, C. J.).) However, the opinion concluded that “two factors appear important in each case: whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is [nonetheless] so punitive in nature or effect that it must be found to constitute punishment despite the Legislature’s contrary intent.” (Id. at p. 795, fn. omitted, italics added.) Moreover, the Castellanos lead opinion noted, we had applied a similar standard of punishment for ex post facto purposes. Thus, in McVickers, supra, 4 Cal.4th 81, we stressed that the AIDS testing requirement there under review, though it imposed a burden, “ ‘[had] a legitimate purpose other than punishment,’ ” and that the burden imposed “ ‘[was] not excessive in relation to the statute’s stated purpose.’ ” (Castellanos, supra, 21 Cal.4th 785, 796 (lead opn. of George, C. J.), quoting McVickers, supra, at p. 89.) Similarly here, the Castellanos lead opinion reasoned whether the burden of sex offender registration is punitive depends on its purpose and effect. (Castellanos, supra, 21 Cal.4th 785, 796 (lead opn. of George, C. J.).) That purpose, the opinion confirmed, is “ ‘to promote the “ ‘state interest in controlling crime and preventing recidivism in sex offenders.’ ” [Citation.] As this court consistently has reiterated; “The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]” [Citations.] . . . [f] . . . The statute is thus regulatory in nature, intended to accomplish the government’s objective by mandating certain affirmative acts.’ ” (Castellanos, supra, at p. 796, quoting Wright, supra, 15 Cal.4th 521, 527.) Accordingly, the Castellanos lead opinion determined, “[t]he sex offender registration requirement serves an important and proper remedial purpose, and it does not appear that the Legislature intended the . . . requirement to constitute punishment. Nor is the . . . requirement so punitive in fact that it must be regarded as punishment, despite the Legislature’s contrary intent. Although registration imposes a substantial burden on the convicted offender, this burden is no more onerous than necessary to achieve the purpose of the statute.” (Castellanos, supra, 21 Cal.4th 785, 796, fn. omitted (lead opn. of George, C. J.).) Thus, the opinion concluded, “the sex offender registration requirement imposed by section 290 does not constitute punishment for purposes of ex post facto analysis.” (Id. at p. 796.) The Castellanos lead opinion acknowledged Reed’s conclusion that mandatory sex offender registration was punitive. However, the opinion noted, the United States Supreme Court had since “elaborated upon and refined the criteria to be considered in determining whether a provision should be considered ‘punishment’ for purposes of ex post facto analysis [citation]” (Castellanos, supra, 21 Cal.4th 785, 797 (lead opn. of George, C. J.)), and we had also spoken on the subject. “Upon reexamination of . . . Reed in light of these more recent cases,” the opinion concluded, “Reed should be disapproved to the extent that decision can be interpreted as suggesting that sex offender registration constitutes punishment for purposes of ex post facto analysis.” (Castellanos, supra, at p. 798.) In this regard, the Castellanos lead opinion concluded we should emphasize, more than Reed had done, the regulatory nature of the registration statute, and—considering the virtually unanimous out-of-state authority sustaining registration requirements against ex post facto challenges—the fact that registration was not historically regarded as punishment. Moreover, the opinion suggested, because Reed involved whether registration was “cruel or unusual punishment” for a misdemeanor conviction of lewd solicitation, much of Reed’s analysis focused on evidence, presented in that case, that registration was an ineffective enforcement tool and an excessive disability, as applied to that relatively minor crime. Similar considerations are irrelevant to ex post facto analysis, the Castellanos lead opinion asserted, which is concerned with whether the disability imposed is excessive in relation to its regulatory purpose. (Castellanos, supra, 21 Cal.4th 785, 798 (lead opn. of George, C. J.).) The concurring opinion in Castellanos, supra, 21 Cal.4th 785, reached similar conclusions by a slightly different route. The concurring opinion reasoned as follows: To decide whether a government sanction is punishment for ex post facto or double jeopardy purposes, the court must first determine whether the Legislature intended the sanction to be “civil” or “criminal.” The civil or criminal nature of the proceedings in which the sanction is imposed is a powerful, but not dispositive, indicator of the Legislature’s intent. If the legislative intent is civil, the court must decide whether the sanction’s purpose or effect is nonetheless so punitive that it must be considered punishment. At this second stage, the factors set forth in Mendoza-Martinez, supra, 372 U.S. 144, provide useful guidance. (Castellanos, supra, 21 Cal.4th 785, 801-802 (cone. opn. of Kennard, J.).) Applying these standards, the Castellanos concurring opinion determined first that the Legislature had not, in this instance, demonstrated a penal intent by making the registration sanction part of a criminal proceeding. Instead, Justice Kennard reasoned, it was simply more efficient to combine the criminal and registration proceedings, since the latter depended directly on the determinations made in the former. (Comparing McVickers, supra, 4 Cal.4th 81 [AIDS testing requirement, imposed as a consequence of a criminal conviction, was not punishment limited by ex post facto clause].) (Castellanos, supra, 21 Cal.4th 785, 803 (cone. opn. of Kennard, J.).) Moreover, the Castellanos concurring opinion concluded, registration is not, on balance, so punitive in nature as to constitute punishment. Justice Kennard noted that although the burdens of registration have obvious deterrent purposes and effects—a characteristic of punishment—we have also identified a nonpunitive purpose of surveillance that assists police to detect and ferret out crime after it occurs. (Castellanos, supra, 21 Cal.4th 785, 804 (cone. opn. of Kennard, J.), citing Wright, supra, 15 Cal.4th 521, 527 [63 Cal.Rptr.2d 322, 936 P.2d 101].) Registration’s punitive aspects, the opinion surmised, are not so overwhelming as to overcome its regulatory and nonpunitive ends. Alluding to Hendricks, supra, 521 U.S. 346, the opinion trenchantly observed, “It is hard to imagine how requiring a sex offender to file an address report could be punishment when physically confining the same offender beyond the end of his criminal sentence is not.” (Castellanos, supra, at p. 804 (cone. opn. of Kennard, J.).) Turning to the Mendoza-Martinez factors, the Castellanos concurring opinion noted that two of these factors supported a finding of punishment— “registration comes into play only on a finding of scienter, and the behavior to which it applies is already a crime.” (Castellanos, supra, 21 Cal.4th 785, 805 (cone. opn. of Kennard, J.).) But these considerations were outweighed, the opinion pointed out, by those supporting a nonpunitive determination: registration imposed no affirmative disability or restraint (because it imposed no restriction on personal liberty); had not historically been viewed as punishment (at least aside from the shaming effect of public disclosure, not applicable to Castellanos’s case); served legitimate nonpunitive ends; and did not appear excessive in relation to its nonpunitive purpose. (Id. at p. 804.) Thus, the Castellanos concurring opinion stressed, “I disagree with Reed[][supra, 33 Cal.3d 914 [191 Cal.Rptr. 658, 663 P.2d 216]] that under the Mendoza-Martinez factors sex offender registration is punishment.” (Castellanos, supra, 21 Cal.4th 785, 805 (cone. opn. of Kennard, J.).) Nonetheless, citing Austin, supra, 509 U.S. 602, the opinion reserved the issue whether registration might be punishment under the Eighth Amendment and its California constitutional equivalent, though not punishment for ex post facto purposes. “Thus,” the opinion concluded, its analysis “[did] not call Reed’s holding into question.” (Castellanos, supra, at p. 805, fn. omitted.) Last term, the United States Supreme Court confirmed beyond doubt that laws requiring the registration of convicted sex offenders—including now common provisions for public dissemination of information about the identity and whereabouts of dangerous offenders—do not impose punishment for purposes of the federal ex post facto clause. (Smith, supra, 538 U.S. 84.) In reaching that conclusion, the high court majority relied heavily on the multifactor test set forth in Mendoza-Martinez, supra, 372 U.S. 144. At issue in Smith was Alaska’s version of “Megan’s Law,” so named in memory of a seven-year-old New Jersey girl “who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim’s family, had prior convictions for sex offenses against children.” (Smith, supra, 538 U.S. 84, 89.) As the Supreme Court observed, “[this] crime gave impetus to laws for mandatory registration of sex offenders and corresponding community notification. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act . . ., which conditions certain federal law enforcement funding on the States’ adoption of sex offender registration laws and sets minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megan’s Law.” (Smith, supra, at pp. 89-90.) The Alaska statute includes both a registration requirement and a public notification provision. Both apply to past convictions. (Smith, supra, 538 U.S. 84, 90.) The statute requires “ ‘any sex offender or child kidnapper . . . physically present in the state’ ” to register with state or local law enforcement authorities. (Ibid.) One convicted of a single nonaggravated sex offense must register annually, and upon any change of address, for 15 years. For one convicted of multiple offenses, or an aggravated offense, these obligations are lifelong. Registration data is sent to the Alaska Department of Public Safety. That department is to make public substantial identifying information about registrants, including their names, aliases, addresses, photographs, physical descriptions, descriptions and license and identification numbers of vehicles, birth dates, crimes for which convicted, places and times of conviction, and terms and conditions of confinement. Alaska posts this information on the Internet. Two men who had suffered qualifying sex offense convictions before the Alaska law was enacted filed a federal suit to void application of the law against them. They claimed that the Alaska statute’s registration requirement, and its provision for invasive public disclosure of information about their identities, descriptions, whereabouts, and crimes, imposed new punishment for their prior crimes in violation of the ex post facto clause. The district court and the court of appeals agreed that the Alaska Legislature intended the statute to be nonpunitive. However, unlike the district court, the court of appeals found the law punitive in effect despite the legislative intent. On that basis, the court of appeals held that the statute violates the ex post facto clause as applied to prior crimes. As in earlier decisions, the United States Supreme Court stated a two-pronged analysis: “If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘ “so punitive either in purpose or effect as to negate [the State’s] intention” to deem it “civil.” ’ [Citations.] Because we ‘ordinarily defer to the legislature’s stated intent,’ [citation], ‘ “only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,’ [citations].” (Smith, supra, 538 U.S. 84, 92.) As to legislative intent, the Smith majority noted the following: First, Alaska’s legislature amply indicated that it intended a civil scheme for public protection. The legislature found that “ ‘sex offenders pose a high risk of reoffending,’ ” that “ ‘protecting the public from sex offenders’ ” was the statute’s primary objective, and that “ ‘release of certain information about sex offenders to public agencies and the general public will assist in’ ” the goal of public protection. (Smith, supra, 538 U.S. 84, 93 [123 S.Ct. 1140].) “[A]n imposition of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive governmental objective and has been historically so regarded.’ ” (Ibid., quoting Hendricks, supra, 521 U.S. 346, 363.) Second, even though Alaska’s Constitution lists public protection as an objective of criminal administration, when a legislative restriction is an incident of the state’s power to protect public health and safety, it will generally be considered as exercising that civil and remedial power, and not as adding punishment. (Smith, supra, 538 U.S. 84, 93-94, citing Flemming v. Nestor (1960) 363 U.S. 603 [4 L.Ed.2d 1435, 80 S.Ct. 1367] [termination of benefits to deported aliens] and United States v. One Assortment of 89 Firearms (1984) 465 U.S. 354 [79 L.Ed.2d 361, 104 S.Ct. 1099] [forfeiture of unlicensed firearms].) Third, it is relevant, but not dispositive, that the registration provisions of Alaska’s law are codified in its criminal procedure code. (Cf. Hendricks, supra, 521 U.S. 346, 361 [civil intent of law for involuntary confinement of dangerously disordered sex offenders is evidenced by statute’s placement in civil code].) Many provisions of Alaska’s criminal code, though perhaps related to criminal administration, are not themselves punitive. “The partial codification of the Act in the State’s criminal procedure code is not sufficient to support a conclusion that the legislative intent was punitive.” (Smith, supra, 538 U.S. 84, 95.) Fourth, a punitive intent is not evidenced by the procedural requirement that plea advisements include notification of registration requirements. “When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance.” (Smith, supra, 538 U.S. 84, 96 [123 S.Ct. 1140].) Here, notice is particularly important, because noncompliance entails criminal penalties. Fifth, the Alaska statute mandates no procedures, but vests authority in the state’s department of public safety to promulgate implementing regulations. The statute itself does not require the procedures adopted to include criminal safeguards. “That leads us to infer that the legislature envisioned the Act’s implementation to be civil and administrative. By contemplating ‘distinctly civil procedures,’ the legislature ‘indicate[d] clearly that it intended a civil, not a criminal sanction.’ ” (Smith, supra, 538 U.S. 84, 96, quoting United States v. Ursery (1996) 518 U.S. 267, 289 [135 L.Ed.2d 549, 116 S.Ct. 2135] (Ursery).) Having concluded, for all these reasons, “that the intent of the Alaska Legislature was to create a civil, nonpunitive regime” (Smith, supra, 538 U.S. 84, 96), the majority next considered whether the Alaska statute was nonetheless punitive in effect. The majority observed that “[i]n analyzing the effects of the Act we refer to the seven factors noted in [Mendoza-Martinez, supra, 372 U.S. 144, 168-169] as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. [Citation.] . . . [T]he Mendoza-Martinez factors are designed to apply in various constitutional contexts . . . .” (Smith, supra, at p. 97, italics added.) “The factors most relevant to our analysis,” the majority observed, “are 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.” (Smith, supra, 538 U.S. 84, 97.) Focusing on the Alaska statute’s community notification provisions, the court first rejected the notion that they resemble historical “shaming” punishments such as public labeling or branding and banishment. As the court noted, the Alaska statute, unlike these early punishments, does not subject the offender to direct ostracism, humiliation, or ridicule. Instead, it simply provides for “the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” (Smith, supra, 538 U.S. 84, 98.) Any resulting stigma, the court explained, is incidental to the statute’s purpose, not “an integral part of the objective of the regulatory scheme.” (Id. at p. 99.) The majority next found that Alaska’s statute does not subject registrants to any affirmative disability or restraint. The majority reasoned: The registration requirements impose no physical restraint like imprisonment, or any other direct restriction on the offender’s activities. The reporting obligations are less onerous than occupational disbarment, which the court has held nonpunitive. Whatever “lasting and painful impact” the public availability of registration information may have on an offender’s practical ability to obtain employment and housing, “these consequences flow not from the Act’s registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and the resulting convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant.” (Smith, supra, 538 U.S. 84, 101.) The majority further concluded that any retributive or deterrent effect the Alaska statute might have does not render it punitive. A contrary theory, the majority observed, “proves too much. Any number of governmental programs might deter crime without imposing punishment. ‘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.’ [Citations.]” (Smith, supra, 538 U.S. 84, 102.) Nor, the majority insisted, are the registration obligations punishment because their duration varies depending on whether the underlying sex offenses are “aggravated” within the statutory definition. The majority noted that “[t]he broad categories . . . and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.” (Ibid.) “The Act’s rational connection to a nonpunitive purpose,” the majority explained, “is a ‘[m]ost significant’ factor in our determination that the statute’s effects are not punitive. [Citation.]” (Smith, supra, 538 U.S. 84, 102.) The offenders conceded that the Alaska statute’s “purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their community],’ ” is legitimate, rational, and valid, but they argued that the law must be “ ‘narrowly drawn to accomplish the stated purpose.’ ” (Id. at p. 103). Not so, the majority responded; “[a] statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The imprecision respondents rely upon does not suggest that the Act’s nonpunitive purpose is a ‘sham or mere pretext.’ [Citation.]” (Id. at p. 103.) The majority rejected the offenders’ contention that the Alaska statute is excessive in relation to its nonpunitive purpose because it (1) applies to all convicted sex offenders, regardless of their future dangerousness, (2) places no limits on the number of persons who have access to the registration information, and (3) imposes a registration requirement of excessive duration. Noting that the risk of recidivism posed by sex offenders generally is “ ‘frightening and high’ ” (Smith, supra, 538 U.S. 84, 103, quoting McKune v. Lile (2002) 536 U.S. 24, 34 [153 L.Ed.2d 47, 122 S.Ct. 2017]), the majority stressed that “Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. 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.” (Smith, supra, at p. 103.) Generally, the majority noted, a legislature “ ‘has power in cases of this kind to make a rule of universal application,’ ” “without any corresponding risk assessment.” (Smith, supra, 538 U.S. 84, 104.) The majority distinguished the involuntary confinement scheme at issue in Hendricks, supra, 521 U.S. 346, noting that the Alaska statute imposes “the more minor condition of registration. In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants’ convictions without violating ... the Ex Post Facto Clause.” (Smith, supra, at p. 104.) The duration of the registration requirement is not excessive, the majority concluded, considering that “[e]mpirical research on child molesters, for instance, has shown that, ‘[cjontrary to conventional wisdom, most reoffenses do not occur within the first several years after release,’ but may occur ‘as late as 20 years following release.’ R. Prentky, R. Knight, and A. Lee, U.S. Dept. of Justice, National Institute of Justice, Child Sexual Molestation: Research Issues 14 (1997).” (Smith, supra, 538 U.S. 84, 104.) Moreover, the majority noted, the public notification system, though widely accessible, is passive; registration information is obtained by contacting a Web site, which warns that criminal acts against a registrant are subject to prosecution. (Id. at p. 105.) The “excessiveness” inquiry, the majority explained, “is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. The Act meets this standard.” (Smith, supra, 538 U.S. 84, 105.) Finally, the majority found the two remaining Mendoza-Martinez factors— whether the regulation comes into play only upon a finding of scienter, and whether the behavior to which it applies is itself a crime—to be of little significance. The regulatory scheme, the court observed, is necessarily founded on past conduct that was a crime, recidivism being the statutory concern. On the other hand, “[t]he obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation.” (Smith, supra, 538 U.S. 84, 105.) In sum, the majority concluded, “respondents cannot show, much less by the clearest proof, that the effects of the law negate Alaska’s intention to establish a civil regulatory scheme. The Act is nonpunitive, and its retroactive application does not violate the Ex Post Facto Clause.” (Smith, supra, 538 U.S. 84, 105-106.) Beyond doubt, section 290 is equally nonpunitive by these criteria. Our decisions, described above, have confirmed that the purpose and intent of registration are regulatory, as a means of assisting law enforcement in dealing with the serious problem of recidivist sex offenders. Moreover, registration is not punitive in effect notwithstanding the legislative intent. Registration has not historically been viewed as punishment, imposes no direct disability or restraint beyond the inconvenience of compliance, and has a legitimate nonpenal objective. Though registration may have incidental deterrent or retributive effects, and applies to conduct which is already a crime, these features are not sufficient to outweigh the statute’s regulatory nature. Nor is it dispositive that the registration statute appears in the Penal Code, and that the obligation to register is imposed as part of a criminal proceeding. Moreover, section 290’s provisions are not excessive, and therefore punitive, insofar as they (1) apply mandatory registration to a wide range of sex-related crimes, without closely assessing the danger posed by each individual offense or offender, and (2) make the registration requirement lifelong. Given the general danger of recidivism presented by those convicted of criminal sexual misconduct, and the relatively minor burden registration represents, the Legislature may adopt a rule of general application for this class of offenders, and may guard against the demonstrated long-term risk of reoffense by imposing a permanent obligation on persons convicted of such crimes. (See Smith, supra, 538 U.S. 84, 104.) The means chosen to achieve the regulatory goal are therefore reasonable. (Id. at p. 105.) Thus, by every standard set forth in such cases as Mendoza-Martinez, McVickers, Hendricks, Castellanos, and Smith, the registration requirement imposed by section 290 is not punishment, but a legitimate, nonpunitive regulatory measure. Moreover, it is clear beyond argument that Reed, supra, 33 Cal.3d 914, misapplied the Mendoza-Martinez factors to conclude otherwise. The only question is whether sex offender registration is nonetheless “punishment” under some “broader” test that applies to the cruel and/or unusual punishment clauses in particular. We conclude that the answer is “no.” Few decisions of this court, or of the United States Supreme Court, have discussed what constitutes punishment in the specific context of the Eighth Amendment and its California counterpart. In Fong Yue Ting v. United States (1893) 149 U.S. 698 [37 L.Ed. 905, 13 S.Ct. 1016], the high court concluded that the deportation of Chinese aliens who violated statutory requirements for remaining in the United States was not “punishment for crime” for purposes of the due process, trial by jury, search and seizure, and cruel and unusual punishments clauses of the federal Constitution. Instead, the court held, such action was simply an exercise of the government’s sovereign power to determine and enforce the conditions under which noncitizens might lawfully be present in this country. (Id. at p. 730.) In Trop, supra, 356 U.S. 86, the court struck down, on divided grounds, a 1940 federal statute providing that a member of the armed forces, convicted by a military tribunal of wartime desertion, would automatically lose citizenship unless restored, at the military’s discretion, to active wartime duty. A four-member plurality, led by Chief Justice Warren, concluded that denationalization for the crime of desertion was a cruel and unusual punishment prohibited by the Eighth Amendment. To answer the preliminary question whether the sanction was “punishment” at all, the Trop plurality equated the problem with that presented under the bill of attainder and ex post facto clauses, “because these provisions apply only to statutes imposing penalties.” (Trop, supra, 356 U.S. 86, 96 (opn. of Warren, C. J.).) “In deciding whether or not a law is penal,” the plurality opinion observed, “this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter others, etc.—it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature.” (Ibid., italics added, fns. omitted.) For two reasons, the Trop plurality concluded, the 1940 denationalization law imposed punishment. First, there were strong indications of punitive intent. Though a congressional committee considering the 1940 statute had reported that it was “ ‘technically . . . not a penal law,’ ” it was derived from similar provisions, dating to the Civil War, that the committee admitted were “ ‘distinctly penal in character.’ ” (Trop, supra, 356 U.S. 86, 94 (opn. of Warren, C. J.).) Second, loss of citizenship, imposed as a consequence of crime, was clearly punitive in nature. Divestment of citizenship for wartime desertion was not like deportation of aliens engaged in espionage, or denaturalization of persons who had falsified their citizenship applications. These, despite their “severe penal effect,” had been upheld as nonpunitive exercises of the sovereign power to set conditions for the presence, and the naturalization, of noncitizens. (Id. at p. 98.) By contrast, “[t]he purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve.” (Id. at p. 97, italics added.) Justice Brennan, who supplied the fifth vote against the statute, reasoned simply that expatriation for military desertion is beyond any enumerated power of Congress, such as the foreign affairs or war power, because it has no logical nexus to the exercise of any such powers. (Trop, supra, 356 U.S. 86, 105-114 (cone. opn. of Brennan, J.).) Justice Frankfurter disagreed in result with both the plurality and Justice Brennan. In Justice Frankfurter’s view, loss of nationality was a logical consequence of failing to perform wartime military duty, a basic obligation of citizenship. Congress could properly so provide, Justice Frankfurter concluded, as a nonpenal incident of its power to regulate military affairs. “Since there are legislative ends within the scope of Congress’ war power that are wholly consistent with a ‘non-penal’ purpose to regulate the military forces, and since there is nothing on the face of [the 1940] legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant for this Court’s labeling the disability imposed by [the statute] as a ‘punishment.’ ” (Trop, supra, at p. 125 (dis. opn. of Frankfurter, J.).) In Uphaus v. Wyman (1959) 360 U.S. 72 [3 L.Ed.2d 1090, 79 S.Ct. 1040], the court upheld a judgment of contempt that ordered the appellant jailed until he complied with the informational demands of a congressional investigating committee. Rejecting a cruel and unusual punishment challenge, among others (see id. at p. 73), the court reasoned that such coercion “ ‘is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.’ ” (Id. at p. 81, quoting Green v. United States (1958) 356 U.S. 165, 197 [2 L.Ed.2d 672, 78 S.Ct. 632] (dis. opn. of Black, J.).) More recently still, the court found that the Eighth Amendment does not protect against the paddling of public school students, because such discipline does not constitute punishment for persons convicted of crimes. (Ingraham v. Wright (1977) 430 U.S. 651, 664 [51 L.Ed.2d 711, 97 S.Ct. 1401].) Despite variations in wording, and occasional disagreements in result, these cases indicated a loose consensus about the standards for determining what is punishment for purposes of the Eighth Amendment. To qualify, the burden or disability must be imposed as a consequence of a law violation, and must either be intended as punishment, or have no other legitimate aim. Measures imposed within the legislative power, that were intended as civil and nonpunitive and had a legitimate regulatory purpose, were not deemed punishment for this purpose, even if they had substantial—even harsh and severe—penal consequences. By these standards, for the reasons set forth above, the mandatory registration of convicted sex offenders is not punishment. Concern that the high court has since adopted a more stringent definition of punishment for Eighth Amendment purposes stems essentially from the high court’s 1993 decision in Austin, supra, 509 U.S. 602. There, after a South Dakota court convicted petitioner Austin of cocaine possession with intent to distribute, the United States filed an in rem action to seize Austin’s mobile-home and auto body shop involved in the drug transaction. The government’s action was premised on federal statutes which called for the forfeiture of all vehicles and real property used in the manufacture, sale, distribution, or concealment of illegal drugs, but which excepted any interest so used without the owner’s knowledge and consent. The lower courts rejected Austin’s claim of an Eighth Amendment violation. The United States Supreme Court reversed. The government argued that the Eighth Amendment in general, and its excessive fines clause in particular, applied only to criminal, not civil, penalties. The court rejected this contention. It reasoned that, unlike some other constitutional guarantees, such as the self-incrimination, speedy trial, confrontation, and right-to-counsel provisions, that apply specifically to criminal cases, the Eighth Amendment contains no such limitation, and was intended to limit the government’s power to punish generally. (Austin, supra, 509 U.S. 602, 607-610.) For this reason, the court suggested, the government was also wrong to assert that “the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be considered criminal under [Mendoza-Martinez, supra, 372 U.S. 144] and [Ward, supra, 448 U.S. 242] [holding that a proceeding to assess a civil penalty against a water polluter was not “so criminal in its nature” as to invoke the protections of the Fifth Amendment’s privilege against self-incrimination].” (Austin, supra, 509 U.S. 602, 607.) “The question in those cases,” the court declared, “was whether a nominally civil penalty should be reclassified as criminal and the safeguards that attend a criminal prosecution should be required.” (Id. at p. 610, fn. 6.) When deciding if a sanction is punishment, whether civil or criminal, the court noted, “[w]e need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish. . . . ‘[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.’ [Citation.]” (Austin, supra, 509 U.S. 602, 610, italics added, quoting United States v. Halper (1989) 490 U.S. 435, 448 [104 L.Ed.2d 487, 109 S.Ct. 1892] (Halper) [holding that per-violation “civil penalty” far in excess of actual damage was “punishment” for purposes of double jeopardy clause].) Applying this test, the court first determined that, prior to ratification of the Eighth Amendment, “forfeiture was understood at least in part as punishment.” (Austin, supra, 509 U.S. 602, 610-611; see also id. at pp. 611-618.) Moreover, the court explained, statutes and case law since the Republic’s earliest days had recognized that forfeiture of property, whether imposed in a criminal, civil, or in rem proceeding, broadly punishes the owner for some form of culpability, willful or negligent, in its use or management. (Id. at pp. 613-619.) Next, the court examined the statutes directly at issue, 21 United States Code section 881(a)(4) and (a)