McGuire v. Strange (83 F. Supp. 3d 1231, 2015)

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, Chief Judge.

I.INTRODUCTION

Michael A. McGuire was born in Montgomery, Alabama, where he graduated from high school in 1971. Eventually, he left the community for many years. In 2010, at the age of 57, he and his wife returned to his hometown to be with his aging mother and other family in the area. Unbeknownst to Mr. McGuire, his arrival coincided with the 2011 promulgation of the Alabama Sex Offender Registration and Community Notification Act (“ASORCNA”). Ala.Code § 15-20A-1 et seq.

Mr. McGuire has one criminal conviction, a serious one: In 1985, he raped and otherwise assaulted his 30-year-old girlfriend of five years. In May 1986, he was convicted of sexual assault in a Colorado state court. Mr. McGuire spent his next three years in prison and a fourth year on parole, successfully completing his prison sentence. He then had a multi-decade career as a hair stylist and jazz musician in the Washington, D.C. area. Prior to relocating to Montgomery in 2010, he had never been required to register as a sex offender. He was, in his brother’s words, “a free American.” (Trial Tr. I, at 14.)

After resettling in his hometown and on the advice of his brother, a local attorney, Mr. McGuire voluntarily visited the Montgomery Police Department to inquire about the scope of Alabama’s sex-offender laws, hoping to confirm his belief that he would not be subject to the state’s restrictions. That belief was erroneous by multiples. Mr. McGuire now lives homeless and unemployed under a bridge in his hometown. Pursuant to ASORCNA, he is required to register as a homeless sex offender in-person at both the City of Montgomery Police Department and the Montgomery County Sheriffs Department every week. In fact, for the rest of his life, he is subject to the most comprehensive, debilitating sex-offender scheme in the land, one that includes not only most of the restrictive features used by various other jurisdictions, but also unique additional requirements and restrictions nonexistent elsewhere, at least in this form. He challenges ASORCNA as violating the Ex Post Facto Clause of the United States Constitution.

The court held a four-day bench trial and received post-trial briefing on the constitutional issue. This opinion constitutes the court’s findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

II.JURISDICTION AND VENUE

Subject-matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and 2201. The parties do not contest personal jurisdiction or venue:

III.PROCEDURAL HISTORY

Mr. McGuire filed his complaint challenging ASORCNA on December 2, 2011. Over the course of litigation, Mr. McGuire amended his complaint four times. In its final iteration, Mr. McGuire’s Third Amended Complaint brought claims under federal law (Counts I-VII) and state law (Counts VIII-IX). It alleged liability under 42 U.S.C. § 1983 for an assortment of federal constitutional violations, including deprivations of due process and liberty, violations of equal protection, the application of ex post facto laws, and illegal seizure, and under state law for claims that included, among others, false imprisonment, false arrest, and negligence.

Motions to dismiss the Third Amended Complaint were filed by all Defendants as to each of Mr. McGuire’s claims. After a thorough period of briefing, the court reviewed each of Mr. McGuire’s twelve causes of action as to each of the six remaining Defendants. On March 29, 2013, 2013 WL 1336882, a Memorandum Opinion and Order was issued, granting in part and denying in part Defendants’ motions to dismiss, ultimately leaving only Mr. McGuire’s ex post facto challenge to proceed. The six remaining Defendants are the City of Montgomery, Montgomery Police Chief Ernest Finley in his official capacity, Montgomery Mayor Todd Strange in his official capacity, Montgomery County Sheriff Derrick Cunningham in his official capacity, Acting Director of the Alabama Department of Public Safety John Richardson in his official capacity, and Alabama Attorney General Luther Strange in his official capacity.

On March 31, 2014, through April 3, 2014, a four-day bench trial was held on Mr. McGuire’s ex post facto challenge to ASORCNA. At the close of trial, all parties were ordered to submit additional briefing on certain topics. After considering the briefs filed in connection with pretrial motions, the post-trial briefs, and the arguments and evidence presented at trial, the court finds that judgment is due to be entered in favor of Mr. McGuire on his challenge to ASORCNA’s provisions requiring dual weekly registration for in-town homeless registrants and dual travel permit applications for all in-town registrants, and in favor of Defendants on the remaining ex post facto claims.

IV. FINDINGS OF FACT

A. ASORCNA

On July 1, 2011, ASORCNA became effective and repealed all prior iterations of Alabama’s sex offender registration and notification laws. 2011 Ala. Acts, No. 640. ASORCNA’s provisions apply to adult offenders convicted of one of thirty-one offenses defined as a sex offense under Alabama law, as well as those convicted in another jurisdiction of a crime that, “if it had been committed in [Alabama] under the current provisions of law, would constitute” one of the enumerated offenses. Ala.Code § 15-20A-5(33). The entire scheme is retroactive, capturing any enumerated or similar offense regardless of when it was committed.

ASORCNA restricts where a registrant may live and work, id. §§ 15-20A-11, -13, requires the distribution of community-notification flyers to those living near a registrant’s residence, id. § 15-20A-21, and provides for a “public registry website maintained by the Department of Public Safety.” Id. § 15-20A-8. The website is required to include specific information regarding each registrant. Registrants must “appear in person to verify all required registration information” quarterly. Id. § 15-20A-10(f). The law also requires each registrant to “obtain, and always have in his or her possession, ... a driver’s license or identification card bearing a designation that enables law enforcement officers to identify the licensee as a sex offender.” Id. §§ 15-20A-18(a), (d).

Additionally, ASORCNA requires registrants who intend to be away from their county of residence for three or more consecutive days to “report such information in person immediately prior to leaving” and to complete a travel permit form providing “the dates of travel and temporary lodging information.” Id. §§ 15-20A-15(a), (b). The permit form explains the duties of the registrant regarding travel, and registrants must sign the form, acknowledging their duties, or “the travel permit shall be denied.” Id. § 15-20A-15(d). When a registrant obtains a permit, the registrant’s local sheriff must “immediately notify local law enforcement” in the registrant’s destination. Id. § 15-20A-15(e). Importantly, registrants who reside in municipalities (“in-town registrants”) must obtain travel permits from both the local police and county sheriff. The forms for obtaining travel permits, which were developed by the Alabama Department of Public Safety, are virtually identical for the local police and the sheriff.

ASORCNA’s provisions apply for life and without regard to the nature of the offense, the age of the victim, or the passage of time since the underlying sex offense. Id. § 15-20A8. ASORCNA does contain three general relief provisions, none of which is applicable to Mr. McGuire. A violation of ASORCNA’s requirements potentially subjects the offender to one of 115 Class C felonies, 82 of which are applicable to Mr. McGuire. See, e.g., id. § 1520A-15(h). Class C felonies in Alabama carry a sentence from one to ten years. Id. § 13A5-6.

ASORCNA’s registration scheme requires offenders to register in-person four times a year, both with “[t]he sheriff of the county and the chief of police if the location subject to registration is within the corporate limits of any municipality.” Id. §§ 15-20A-4, -10. For homeless offenders who reside within the city limits of any municipality, the registration requirement is enhanced to once a week with both law enforcement jurisdictions (“dual registration”). Id. §§ 15-20A-4G3), -12(b). Thus, in-town homeless offenders must register in-person a minimum of 112 times a year. The county and city forms to be completed by homeless registrants are substantively identical. Montgomery eur-rently has three homeless offenders out of roughly 500 registrants.

Finally, the Legislature delegated rule-promulgating authority for ASORCNA to the Director of the Alabama Department of Public Safety. Id. § 15-20A-44. This accounts for the strong similarity in the ASORCNA forms used by local police departments and county sheriffs.

The Alabama Legislature made the following findings relevant to its intent in enacting the scheme:

(1) Registration and notification laws are a vital concern as the number of sex offenders continues to rise. The increasing numbers coupled with the danger of recidivism place society at risk. Registration and notification laws strive to reduce these dangers by increasing public safety and mandating the release of certain information to the public. 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. Registration and notification laws aid in public awareness and not only protect the community, but serve to deter sex offenders from future crimes through frequent in-person registration. Frequent in-person registration maintains 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, monitoring, and tracking sex offenders.

(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. As the number of homeless sex offenders increases, locating, tracking, and monitoring these offenders becomes more difficult.

(5) 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 offenders but to protect the public, and most importantly, promote child safety.

Id. §§ 15-20A-2(1), (3), (5). With regard to the branding of one’s sex-offender status on the ASORCNA-required driver’s license or official identification card, the Legislature intended “a designation that enables law enforcement officers to identify the licensee as a sex offender” but did not specify the method of notice on the license. Id. § 15-20A-18.

B. Mr. McGuire’s Experience

Mr. McGuire turned 60 years old during the course of this trial. He is a sex offender under ASORCNA, and, as a result, he is required to register with the City of Montgomery Police Department and the Montgomery County Sheriffs Department on a regular basis. Mr. McGuire is one of more than 500 registered sex offenders residing in Montgomery County, over 430 of whom live within the Montgomery city limits.

Mr. McGuire’s registry information has been available to the public via the Alabama and federal sex-offender registries since May of 2010. Additionally, pursuant to ASORCNA’s community-notification provision, persons within the statute’s prescribed proximity to Mr. McGuire’s registered residence were notified by flyer in June of 2010 that Mr. McGuire is a registered sex offender. During each quarterly registration at the Montgomery Police Department and the Montgomery County Sheriffs Office, Mr. McGuire is supposed to pay a $10 fee. Due to his “homeless status,” however, Mr. McGuire’s fee has been waived. (Doc. #251, at 40:12-14.)

Mr. McGuire is currently one of three homeless offenders in Montgomery County, and he lists his residence as being under a bridge in the City of Montgomery. Mr. McGuire’s wife of eleven years is not homeless; she lives in the house that the couple rents from Mr. McGuire’s brother. Because the house is not in an ASORCNA-compliant area, Mr. McGuire is prohibited from residing in the house with his wife. He may, however, stay in the house not more than two consecutive nights, not to exceed nine nights a month. Id. § 15-20A-ll(e).

Mr. McGuire asked local law enforcement about the suitability of fifty to sixty other homes in the City, but none complied.. It is undisputed that Mr. McGuire and his wife lived in the Regency Inn from April 27, 2010, until July 19, 2010, paying a weekly rent. Eventually, however, he depleted his savings, and the couple moved out. The testimony of Mr. McGuire’s expert established that, conservatively, 80 percent of the city’s housing stock was not ASORCNA-compliant, thereby creating a large, residential “zone of exclusion.” The City of Montgomery has over 96,000 parcels of real estate. (Trial Tr. I, at 61.) The precise extent of the zone of exclusion is an ever-moving target, changing almost daily with the ebb and flow' of real estate transactions. It is undisputed, however, that much of the City’s housing is not available for sale or rent at any one time, and Mr. McGuire’s expert testified that some of the available housing stock is in expensive neighborhoods and some is in undeveloped rural areas. The expert testified that 76.8 percent of the parcels “are off limits to people subject to ASORCNA” and that “80 percent of where the people are actually living in the city is off limits to people subject to the statute.” (Trial Tr. I, at 46.) Accurately accounting for housing availability for sex offenders is, in short, an unresolvable nightmare for law enforcement. For registrants, who bear the burden of locating such housing under the penalty of several felony offenses should they make the wrong decision, keeping track is impossible, period. Nevertheless, all but three of the more than 430 sex offenders registered in the City of Montgomery have found compliant homes, are grandfathered into non-compliant areas, or no longer reside in the City.

Because Mr. McGuire is homeless, he registers quarterly and weekly with both the Montgomery County Sheriffs Office and the Montgomery City Police Department.. The two offices are located five miles apart. On occasion, Mr. McGuire has had to walk as far as twenty miles to register with both jurisdictions.

Before moving to Alabama in 2010, Mr. McGuire was employed as a hair stylist and musician. Since moving to Alabama, ASORCNA has prevented Mr. McGuire from accepting or applying for a number of jobs, including music-related engagements. He is occasionally able to arrange to play in a compliant zone, for which he is paid $125 per event. As a result of the employment restrictions, Mr, McGuire lives mostly on a fixed income comprised of disability benefits.

Mr. McGuire is subject to other ASORCNA requirements as well. For example, he has had to replace his driver’s license with a new ASORCNA-compliant license. On the front of his new license is the inscription “CRIMINAL SEX OFFENDER” in red lettering. Mr. McGuire has also had to limit his travel — a hobby he enjoyed prior to moving to Alabama— because of the three-day travel permit requirement. Applying for the permit requires registration at two jurisdictions for all in-town offenders, homeless or not.

V. CONCLUSIONS OF LAW

A. Proper Defendants

In challenging ASORCNA, Mr. McGuire brought this lawsuit against a number of individuals and governmental entities. The viability of his claims against each Defendant will be addressed in turn.

1. City of Montgomery, the Mayor, and the Chief of Police

Mr. McGuire’s § 1983 ex post facto claims for injunctive and declaratory relief remain pending against the City of Montgomery, the Mayor in his official capacity, and the Chief of Police in his official capacity. For the reasons that follow, the claims against the City, the Mayor, and the Chief of Police are due to be dismissed,

a. Official-Capacity Suit Against the Mayor and the Chief of Police

For purposes of § 1983, suits against the Mayor and the Chief of Police in their official capacities are suits against the City itself. See McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997); see also Cooper v. Dillon, 403 F.3d 1208, 1215 (11th Cir.2005) (noting that a § 1983 suit against a municipal police chief is “the sáme as a suit against the municipality”). Because the City is also a defendant, the § 1983 ex post facto claims against the Mayor and Chief of Police in their official capacities are due to be dismissed as redundant. See Gray v. City of Eufaula, 31 F.Supp.2d 957, 965 (M.D.Ala.1998) (dismissing as redundant a § 1983 official-capacity claim where the plaintiff also brought a § 1983 claim against the city).

b. City of Montgomery

For a city to be liable under § 1983, “the plaintiff has the burden to show that a deprivation of constitutional rights occurred as a result of an official government policy or custom.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.2005) (defining “custom” and “policy”). “‘Only those officials who have final policymaking authority may render the municipality liable under § 1983.’ ” Id. (quoting Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996)).

In Cooper, the Eleventh Circuit addressed whether a city could be held liable under § 1983 for a police chiefs enforcement of an unconstitutional state statute. Id. at 1222. In that case, the police chief had ordered the arrest of the plaintiff, who was a newspaper publisher, for publishing news articles “disclosing ... information he obtained as a participant in an internal investigation.” Id. at 1213. The court determined that the state statute under which the publisher was arrested was “an unconstitutional abridgment of core First Amendment rights,” id. at 1219, and that “state law demonstrate^] that [the police chief] was the ultimate policymaker for police procedure” for the city. Id. at 1222. Rejecting the police chiefs argument that the city could not “be liable for enforcing an unconstitutional state statute,” the Eleventh Circuit held that the city had “adopt[ed] the unconstitutional proscriptions [of the statute] as its own” by enacting an ordinance that made it unlawful to commit a state-defined offense within the city limits. Id. Hence, the Eleventh Circuit held that the city, “through the actions of [its police chief], adopted a policy that caused the deprivation of [the plaintiffs] constitutional rights which rendered the municipality liable under § 1983.” Id. at 1223.

Unlike in Cooper, Mr. McGuire presents no evidence indicating that a City of Montgomery official has final policy-making authority over the provisions of ASORCNA. Rather, the Alabama Legislature delegated the interstitial policy-making function of ASORCNA to the Director of the Department of Public Safety. Additionally, no evidence has been offered indicating that any City official has discretionary authority over the promulgation of rules associated with ASORCNA, or that any such rules have been promulgated by the City. Because there is no evidence that the City has “consciously chosen [the methods in which ASORCNA has been implemented] from among various alternatives,” City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), there has been no showing that any of the alleged actions in this case were a result of a city custom or policy. Accordingly, the City of Montgomery is due to be dismissed.

2. State Officials

Mr. McGuire also seeks prospective injunctive and declaratory relief against the State Attorney General, the Montgomery County Sheriff, and the Alabama Department of Public Safety Director in their official capacities (“State Officials”). As explained in the September 9, 2013 Order (Doc. # 134), these are viable avenues of relief under § 1983. See generally Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir.1999) (The Eleventh Amendment, by application of the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), does not bar § 1983 official-capacity suits for “prospective equitable relief to end continuing violations of federal law.”). Accordingly, Mr. McGuire’s lawsuit proceeds only as to his § 1983 claims seeking to enjoin the State Officials in their official capacities from continuing to enforce an allegedly ex post facto law and for corresponding declaratory relief.

B. Standing

Mr. McGuire challenges ASORCNA’s registration, notification, driver’s license inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions. Of those challenges, the State argues that Mr. McGuire lacks standing to challenge the employment and travel restrictions and the registration-fee requirements.

The State argues that, because Mr. McGuire does not have definite plans to travel and has not tried to travel in the recent past, he has suffered no injury with regard to ASORCNA’s travel-permit requirement. Similarly, the State argues that, because Mr. McGuire admitted at the hearing that he was not currently seeking employment, he does not have standing to challenge the employment restrictions. Finally, the State contends that Mr. McGuire cannot challenge the registration-fee requirement because his fee has often been waived in light of his “homeless” status. All three of the State’s arguments are unpersuasive.

The right to travel is a fundamental right. United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”). Further, a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters his exercise of constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Because Mr. McGuire’s right to travel is deterred by ASORCNA’s travel-permit requirement and corresponding risk of felony convictions, Mr. McGuire has standing to challenge the requirement.

As to employment, while it is true that Mr. McGuire is not currently looking for work, he stated that work in the form of musical engagements often “eome[s] to [him].” (Doc. #251, at 39:13.) There is no question that Mr. McGuire’s musical employment has been and will continue to be negatively impacted by ASORCNA. In particular, Mr. McGuire proved that he continues to turn down musical perform-anees because the performances are scheduled in venues located in non-compliant areas. (Doc. # 251, at 25:13-25.) The fact that Mr. McGuire has had to decline offers to work at venues in non-compliant areas confers standing for purposes of challenging ASORCNA’s employment restrictions.

Finally, as to the registration-fee requirement, “[a]n allegation of future injury may suffice [for a plaintiff to have standing] if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (internal quotations omitted). While Mr. McGuire is not paying the fee currently, he is exempt only because he is homeless. (Doc. # 251, at 40:12-14.) Regardless of whether this is a decision made by law enforcement or an adjudication of indigence by a judge, the risk that Mr. McGuire may lose his homeless or indigent status and thus be required to pay the fee is substantial enough to confer standing to challenge the registration-fee requirement. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1000-01, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (finding standing because respondents nursing home remained “free to determine independently, that respondents’ continued stay at current levels of care [was] not medically necessary,” and based on analogous past decisions, the threat of such a decision was “quite realistic”).

Accordingly, Mr. McGuire has standing to challenge ASORCNA’s registration, notification, driver’s license inscription, and registration-fee requirements, as well as its residency, employment, and travel restrictions.

C. Ex Post Facto Challenge

Mr. McGuire’s sole remaining claim is that ASORCNA violates the Ex Post Facto Clause of the United States Constitution. The Ex Post Facto Clause “forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L.Ed. 356 (1866)). As the Supreme Court has explained, the Ex Post Facto Clause is but one expression of the “deeply rooted” jurisprudential “presumption against the retroactive application of new laws.”. Lynce v. Mathis, 519 U.S. 433, 439-40, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). This “limit[ation] on the sovereign’s ability to use its lawmaking power to modify bargains it has made with its subjects” protects “not only the rich and the powerful, but also the indigent defendant engaged in negotiations that may lead to an acknowledgement of guilt and a suitable punishment.” Id. at 440, 117 S.Ct. 891 (internal citation omitted). The protection afforded by the Ex Post Facto Clause is limited, however, as the Supreme Court has held that its prohibition “applies only to criminal laws, not to civil regulatory regimes.” United States v. W.B.H., 664 F.3d 848, 852 (11th Cir.2011) (citing Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)).

Because a civil regulatory regime is not subject to an ex post facto challenge, the issue is whether ASORCNA may fairly be characterized as criminal, imposing a retroactive punishment, or is more properly categorized as civil and non-punitive. Id. The framework for this inquiry is well settled. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (outlining the Court’s two-step approach). First, a court must look to legislative intent. If it determines that “the intention of the legislature was to impose punishment, that ends the inquiry,” and a plaintiff may proceed with the ex post facto challenge. Id. If, however, the legislature intended “to enact a regulatory scheme that is civil and nonpunitive,” the court must proceed to step two and determine “whether the statutory scheme is ‘so punitive either in purpose or effect as to negate’ ” the Legislature’s civil intent. Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (internal quotations and alterations omitted)).

1. Step One: The Expressed Intent of the Alabama Legislature

To determine the intent of the Alabama Legislature in enacting ASORC-NA, the court is to consider the statute’s text and structure, as well as the “[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes.” Smith, 538 U.S. at 92-94, 123 S.Ct. 1140. Because “[a] conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, ... considerable deference must be accorded to the intent as the legislature stated it.” Id. at 92-93, 123 S.Ct. 1140. Here, the majority of considerations indicate that the Alabama Legislature’s express intent was to enact a civil regulatory scheme, not to impose punishment.

First, just as the Supreme Court observed in Smith v. Doe—a leading case in which the Court analyzed whether Alaska’s sex-offender legislation was criminal or civil — the Alabama Legislature “expressed the objective of the law in the statutory text itself.” 538 U.S. at 93, 123 S.Ct. 1140 (recognizing that the Alaska Legislature expressed a clear civil intent when it spoke to sex offenders’ high recidivism rates and identified public safety as the government’s primary motivator). In ASORCNA’s legislative findings section, the Legislature “declares that its intent in imposing certain registration, notification, monitoring, and tracking requirements on sex offenders is not to punish registrants but to protect the public and, most importantly, promote child safety.” Ala.Code § 15-20A-2(5). And specifically with regard to homeless sex offenders, the statute notes that their increased “mobility” necessitates more frequent monitoring “for the protection of the public.” Id. § 15-20A-2(3). Because the Alabama Legislature expressly disavowed a penal motivation and, instead, highlighted its concern for public safety, there is no doubt that the Alabama Legislature proffered a civil purpose and indicated its preference for a civil label. See Smith, 538 U.S. at 93, 123 S.Ct. 1140 (“[C]ourts ‘must first ask whether the legislature, in establishing the penalizing mechanism, indicated whether expressly or impliedly a preference for one label or the other.’ ” (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997))).

Mr. McGuire argues that, based solely on the text of the statute, the Legislature’s intent is, at most, ambiguous. As an example of one of ASORCNA’s more criminal-like features, Mr. McGuire points out that it is codified in Aabama’s criminal procedure code. Additionally, ASORCNA incorporates criminal penalties for enforcement purposes, which could indicate that the statute was intended as a criminal measure. The Court in Smith, however, faced similar statutory attributes it considered “open for debate” and still found that Aaska Legislature’s purpose in enacting the statute was! nonpunitive. Id. at 94, 123 S.Ct. 1140.

In Smith, the Court discussed how the notification provisions of Aaska’s sex-offender statute were codified in the state’s “Health, Safety, and Housing Code” while the registration provisions were codified in Aaska’s criminal procedure code. 538 U.S. at 95, 123 S.Ct. 1140. It went on to note, however, that “[t]he location and labels of a statutory provision” are not dispositive factors and recognized that Alaska’s Code of Criminal Procedure “contain[ed] many provisions that d[id] not involve criminal punishment, such as the civil procedures for disposing of recovered and seized property.” Id. Additionally, the fact that Alaska “invoke[d] the criminal process in aid of’ its regulatory scheme by providing notice of the act to defendants during their plea colloquies and incorporating criminal penalties, did “not render the statutory scheme itself punitive.” Id. at 96, 123 S.Ct. 1140. Rather, the Court “inferred] that the legislature envisioned the Act’s implementation to be civil and administrative” as it vested the authority to promulgate regulations in an administrative agency and did not include “any of the safeguards associated with the criminal process.” Id.

Here, while all of ASORCNA is codified within the criminal procedure code, Alabama’s criminal procedure code contains many provisions similar to the nonpunitive provisions highlighted in Smith. Specifically, Alabama’s criminal procedure code contains provisions for “disposing of recovered and seized property [Ala.Code § 15-5-50-65] ... and laws governing actions for writs of habeas corpus [Id. § 15-21-1-34], which under [Alabama] law are ‘independent civil proeeeding[s].’ ” Id.; see also Woods v. State, 264 Ala. 315, 87 So.2d 633, 636 (1956) (“It seems to be the general opinion that habeas corpus is a civil, as distinguished from a criminal, remedy or proceeding, regardless of whether the prisoner is detained under civil or criminal process.”). Further, other provisions within the criminal procedure code do not involve criminal punishment, such as procedures for using audio-video communications during criminal pre-trial proceedings, Ala.Code § 15-26-1-6; laws protecting child victims and witnesses in prosecutions for sexual offenses and exploitations involving children, id. §§ 15-25-1-6, -30-40; and laws governing the rights of crime victims generally, id. §§ 15-23-1-23, -40-46, -60-84, -100-04. Thus, as in Smith, the codification of ASORCNA within the criminal procedure code “is not sufficient to support a conclusion that the legislative intent was punitive.” 538 U.S. at 95, 123 S.Ct. 1140.

Additionally, ASORCNA’s enforcement provisions do not support a conclusion that the Legislature’s intent was punitive. No procedural safeguards associated with criminal law are included alongside ASORCNA’s restrictions or requirements. Further, ASORCNA does not mandate any procedures, but rather vests the Alabama Department of Public Safety with the “authority to promulgate any rules as are necessary to implement and enforce” the Act. Ala.Code § 15-20A-44. Accordingly, the fact that ASORCNA relies on criminal penalties for the Act’s enforcement does not, in and of itself, indicate a legislative intent to create a punitive scheme.

In light of the guidance provided by the Supreme Court in Smith, the court finds that the Alabama Legislature clearly expressed its nonpunitive intent and ASORCNA’s other formal attributes do not sufficiently discount the deference that must be given to the Legislature’s stated intent. As a result, the second step of the analysis must be examined. .

2. Second Step: Effects Analysis

If the analysis ended with the Legislature’s stated intent, the legislative branch would have pitched a shutout to the judicial branch. But the Supreme Court has recognized for centuries that what something is called and what something actually is may be two different things. Just so, in double jeopardy and ex post facto law, allowance is made for guardedly going behind expressed legislative intent to the reality of a legislatively created thing by assessing the exposed purpose or effects of the thing. Hence, we have the ancient observation that “[t]he Constitution deals with substance not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however distinguished.” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325, 18 L.Ed. 356 (1866)) (emphasis added). Thus, in the second step of the ex post facto analysis, the focus turns to whether this scheme is so punitive in purpose or effect as to negate the State’s declared nonpunitive intent.

Admittedly, “[bjecause we 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.” W.B.H., 664 F.3d at 855 (emphasis in original) (quoting Smith, 538 U.S. at 92, 123 S.Ct. 1140). The clearest proof standard is a heavy burden to carry: “some evidence will not do; substantial evidence will not do; and a preponderance of the evidence will not do. ‘[0]nly the clearest proof will do.” Id. (quoting Smith, 538 U.S. at 92, 123 S.Ct. 1140).

Illustrating, however, that courts are not entirely shut out from an inquiry that goes beyond a legislature’s stated intent, the Supreme Court in Smith applied the Mendoza-Martinez “guideposts.” 538 U.S. at 97, 123 S.Ct. 1140 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). The Mendoza-Martinez factors, “which migrated into our ex post facto case law from double jeopardy jurisprudence,” call on a court to analyze “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, 538 U.S. at 97, 123 S.Ct. 1140. These factors are only “guideposts” and are “neither exhaustive nor dis-positive”; “[n]o one factor should be considered controlling as they ‘may often point in differing directions.’ ” Hudson v. United States, 522 U.S. 93, 101, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (quoting Mendoza-Martinez, 372 U.S. at 169, 83 S.Ct. 554). These factors are useful and will be applied in the following analysis.

a. The Extent to Which Effects Are Analyzed

As a preliminary matter, the court must determine the extent to which ASORC-NA’s effects may be analyzed. The parties have taken diametrically opposed stands on this point. Mr. McGuire advocates for the consideration of each of ASORCNA’s effects, including those felt by only one or two offenders at most, while Defendants argue that ASORCNA’s implementation (a term used, in this context, synonymously with “effects”) may not be considered at all in light of the requirement that a court look only to the statute on its face. The court declines to follow either approach, rather, finding sufficient guidance in Smith and other Supreme Court precedent to establish the level of consideration necessary.

As has been discussed, in Smith, the United States Supreme Court determined that the Alaska Sex Offender Registration Act did not violate the Ex Post Facto Clause of the Constitution. The Alaska statute required a sex offender to register with law enforcement and required law enforcement to notify community members of the sex offender’s presence. Of particular importance, the majority examined the impact of the state’s dissemination of registrants’ information over the internet, despite the absence of any provision detailing how to make registrants’ information public within the statute. Specifically, the Court “acknowledged that notice of a criminal conviction subjects the offender to public shame, [with] the humiliation increasing in proportion to the extent of the publicity,” but, because “[t]he purpose and the principal effect of notification are to inform the public for its own safety, [and] not to humiliate the offender, ... the attendant humiliation [was] but a collateral consequence of a valid regulation.” Id. The Court examined these general effects on offenders even though “[t]he Act [did] not specify the means by which the registry information [was to] be made public.” Id. at 91,123 S.Ct. 1140.

There is little difference between implementation of’ the internet-dissemination scheme* in Smith and the Department of Public Safety’s implementation of the travel-permit and license-notification requirements under ASORCNA. First, both statutes provide a grant of regulatory authority to the State’s Department of Public Safety. Id. at 96, 123 S.Ct. 1140 (stating that the Alaska Act “vest[ed] the authority to promulgate implementing regulations with the Alaska Department of Public Safety”); Ala.Code § 15-20A-44(c) (“The Director of the Department of Public Safety shall have the authority to promulgate any new rules as are necessary to implement and enforce [ASORCNA].”). Second, both Smith and the present analysis involve an examination of the Department of Public Safety’s chosen means of implementing a provision within the statute. See Smith, 538 U.S. at 90, 123 S.Ct. 1140 (noting that the Alaska statute required certain information, including offenders’ names and addresses, be made available to the public); Aa.Code § 15-20A-15 (establishing travel restrictions); id. § 15-20A-18 (establishing identification requirements). Based on the statutory delegation of regulatory authority and the specific provision in the statute under which the regulatory authority had been exercised, the Smith Court analyzed the actual means used to make the non-eonfi-dential material public, and this court will conduct a similar analysis regarding ASORCNA’s travel-permit and license-notification requirements.

In contrast to the effects associated with the implementation of travel restrictions and license-notification requirements, the idiosyncratic effects alleged by Mr. McGuire may not be used alone to uphold or defeat an ex post facto challenge. Consideration of such idiosyncratic effects alone has been expressly rejected by the Supreme Court. In Seling v. Young, the Court favorably quoted Hudson v. United States, in which it “expressly disapproved of evaluating the civil nature of an Act by reference to the effect that Act ha[d] on a single individual.” 531 U.S. 250, 262, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). The Seling Court went on to note that courts must instead “evaluate the question by reference to a variety of factors considered in relation to the statute on its face.” Id. (internal quotation marks omitted).

The Seling case signals why idiosyncratic effects cannot be used alone in upholding a challenge. In that case, the Court determined that a statute that had already been characterized as facially nonpunitive could not be rendered punitive solely by its application to a single individual. To hold otherwise, according to the Court, would be to “invite an end run around the [State] Supreme Court’s [earlier] decision that the Act [was] civil.” Id. at 264, 121 S.Ct. 727. Based on that analysis, it would be illogical to allow such a result in this case solely because Mr. McGuire presents the right set of idiosyncratic effects in ASORCNA’s challenge before this court. If this were allowed, cases presenting idiosyncratic effects would have disparate results from those examining purely general effects.

That said, idiosyncratic effects have been used in the negative to bolster a finding that a statute does not violate the Ex Post Facto Clause. For example, the Supreme Court in Hendricks addressed the specific confinement to which the plaintiff in that case had been subjected by stating that, “[although the treatment program initially offered Hendricks may have seemed somewhat meager, it must be remembered that he was the first person committed under the Act.” 521 U.S. at 367-68, 117 S.Ct. 2072. This statement acknowledged the idiosyncratic subpar treatment that the plaintiff received and cast the treatment as having only a minor impact on the overall analysis. Further, and as an additional example, the Third Circuit noted idiosyncratic effects in rejecting an ex post facto challenge to a sex offender registration scheme, stating that, “[although the record [in that case] reflected] that personal injury and property damage from private violence ha[d] occurred, it also reflected] that [those] occurrences [were] relatively rare.” E.B. v. Verniero, 119 F.3d 1077, 1104 (3d Cir.1997). By highlighting the idiosyncratic nature of specific persons’ experiences, the Hendricks and Vemiero courts provided additional support for rejecting the plaintiffs’ ex post facto challenges.

The court finds that idiosyncratic effects may not be used alone to uphold or defeat Mr. McGuire’s ex post facto challenge. Accordingly, the court will confine its consideration of such effects, e.g., the “zones of exclusion” — Mr. McGuire’s particular experience with homelessness, and Montgomery’s lack of affordable or vacant housing — only to the extent that they explain or describe general effects flowing from the face or necessary operation of the statutory scheme.

A related but distinct consideration is the proper scope and focus of the examination of effects. As Smith pointed out, “we must ... examine ... the statutory scheme .538 U.S. at 92, 123 S.Ct. 1140 (emphasis added). This instruction is particularly important in the case of ASORCNA because, to put it bluntly, it is the most comprehensive scheme, by far, in the United States. It is unique and novel in scope. No other state combines in-person registration, community notification, driver’s license branding, residency restrictions, employment restrictions, travel restrictions, association with related children restrictions, weekly registration for the homeless, dual registration for all offenders in municipalities, and dual weekly registration for all homeless offenders in municipalities (totaling up to 112 in-person registrations per year), undergirded by 115 felonious ways to violate the statutory scheme, life application, retroactive to infinity or eternity (whichever first occurs), and all of it (except very limited exceptions for relatively minor offenses) without risk assessments for general sex offenders (non-juvenile and non-predatory).

Alabama’s scheme goes miles beyond the minimum federal requirements of the Sex Offender Registration Act (“SOR-NA”), .recently reviewed in this Circuit in United States v. W.B.H. See 664 F.3d 848 (11th Cir.2011). Many courts across the country have analyzed and ruled upon individual components that are included in Alabama’s scheme, and in isolation, most have been upheld. But no court has ever been faced with analyzing in toto the general effects of a scheme this expansive. Realizing this task early on, and in consideration of the court’s reading of the law, the parties were notified that the court would examine the cumulative effects of the scheme as a whole to determine if the effects overrode stated intent.

Defendants objected to this approach. In fact, the State in particular objected to any trial on the facts: “[W]e believe this question is a purely legal one, not susceptible to courtroom fact-finding.... [W]e therefore object to holding a trial at all on the ground that it is unnecessary.” (Trial Tr. I, at 18.) The court could find no controlling law holding that the “clearest proof’ standard applies only to legislative facts. Because a burden of proof suggests evidence, and the court knowing of no way to gather facts about the general effects caused by the scheme on its face, nor a way to assess “how effects of the Act are felt by those subject to it ... ”, Smith, 538 U.S. at 99-100, 123 S.Ct. 1140 (assessing the affirmative disability or restraint prong) (emphasis added), the objections of the State were .overruled at trial.

The State also took the position at trial that the effects must be examined exclusively as to each provision individually, instead of cumulatively:

THE COURT: Are you aware of any law in the United States that has as many effects on an offender as the Alabama statute?

MR. PARKER: I am unaware only because I have not spent much time researching these statutes. And I understand the plaintiffs have a chart. We ... obviously rely on the Court to do the research. It’s time-consuming. I don’t think it’s necessary for purposes of this case.

THE COURT: You think that ... because the State Legislature says it, that they can create unlimited effects and it not be excessive?

MR. PARKER: No, Your Honor. We — the question, again, is whether the regulatory means, chosen are reasonable in light of the nonpunitive objective.

THE COURT: That doesn’t answer the excessive [sic] question.

MR. PARKER: Well, what I’m trying to say, Your Honor, is if you take each of these provisions and look at them, they each are reasonable in light of the regulatory means chosen.

THE COURT: So then you can have unlimited [effects on offenders] as long as each one stands alone as individual [sic],

MR. PARKER: Yes. If that’s your question, yes, that’s how I see the law.

(Trial Tr. I, at 25-26.) The court was perplexed by the State’s assertion that unlimited intersecting provisions and their effects would be constitutional. First, this position would effectively bar courts from truly analyzing an act’s effects. What would there be for a court to do, then, but unquestioningly take the legislature at its word with regard to intent? Second, taken to its extreme, even daily double-registration of city-dwelling homeless offenders — totaling 730 in-person registrations a year per homeless offender — would be, under this analysis, perfectly constitutional. The argument ends in absurd results.

Wishing to avoid absurdity if at all possible, the court has settled on a blended analysis of the effects of ASORCNA. First, each of the relevant statutory provisions will be examined in light of the Mendoza-Martinez factors. Second, the scheme as a whole will be assessed for purpose and effects, taking into particular account its effect on homeless Alabama sex offenders. This is so because the Constitution deals in substance not shadows, the nature of things, not just the name of things.

With these analytical contours in mind, the court now turns to the Mendoza-Martinez guideposts.

b. Whether, in Their Necessary Operation, ASORCNA’s Provisions Have Been Regarded in Our History and Traditions as Punishment

Mr. McGuire argues that ASORCNA’s requirements resemble various traditional forms of punishment. Each suggested similarity will be addressed in turn,

i. Banishment

Mr. McGuire contends that ASORCNA’s residency restrictions effectively create an “enormous zone of banishment.” (Doc. # 256, at 9.) The Supreme Court in Smith recognized banishment as a traditional form of colonial punishment. 538 U.S. at 98, 123 S.Ct. 1140. Since then several courts have had the opportunity to explore how sex offender residency restrictions compare to the historical practice. See Doe v. Miller, 405 F.3d 700, 719 (8th Cir.2005) (differentiating residency restrictions from the practice of banishment); Wallace v. New York, 40 F.Supp.3d 278, 317-18 (E.D.N.Y.2014) (same); Doe v. Baker, No. 1:05-CV-2265, 2006 WL 905368, *3 (N.D.Ga. Apr. 5, 2006) (same). In comparing the historical practice of banishment to Iowa’s sex offender residency restrictions, the Eighth Circuit explained that “banished offenders historically could not ‘return to their original community.’ ” Miller, 405 F.3d at 719. Similarly, the Court in Smith noted that “the banishment of an offender expelled him from the community.” 538 U.S. at 98,123 S.Ct. 1140.

As Mr. McGuire has testified in this case, he is not barred from frequenting any part of the city during the day. (Doc. #256, at 13.) Rather, the restrictions only limit the places in which an offender can establish a residence or. apply for and accept employment. There is no complete exile from the City of Montgomery or from any other location within Alabama. Thus, while Mr. McGuire is able to offer a troubling account of his inability to find viable housing, he cannot show that he has been the subject of banishment in its historical form.

ii. Public Shaming

Mr. McGuire next argues that two of ASORCNA’s provisions resemble the traditional punishment of public shaming. First, Mr. McGuire asserts that by requiring the front of every registrant driver’s license to be branded with the words “CRIMINAL SEX OFFENDER” in all capital, red letters, the State is subjecting registrants to “public embarrassment, humiliation, and shaming.” (Doc. # 256, at 25.) In Smith, the Supreme Court explored the historicál practice of public shaming in light of Alaska’s sex offender community notification provisions and recognized that “[s]ome colonial punishments indeed were meant to inflict public disgrace.” 538 U.S. at 98, 123 S.Ct. 1140. However, the Court narrowed its description of public shaming, noting that such punishments were historically carried out by holding “the person up before his fellow citizens for face-to-face shaming.” Id.

The red-lettered labelling of registrant driver’s licenses is no doubt an aggressive provision. Mr. McGuire illustrated how the required red lettering on his driver’s license leads to shame and embarrassment in ordinary, everyday encounters with the public:

ANSWER: Well, first of all, without — just having the license itself is a reminder every day that you’re being punished. You’re being — I don’t know if the correct word is “ostracized.” But with that said, I had an experience just recently at a Dollar General Store. I used my credit card to purchase some groceries; and the clerk asked me -for my driver’s license, so I showed it to him. And he held it up to compare it with my credit card, and he looked at it and he looked at me again. And he handed it back to me. He said, how long have you been locked up? And I found that just to be repulsive. I felt very ashamed, very embarrassed.

QUESTION: In what kinds of situations do other folks have to look at your driver’s license?

ANSWER: Cashing checks. Or I might pick up some items that my wife would order on line from Walmart, and I have to go to Walmart and show my identification.

QUESTION: In fact, you’ve had to show your driver’s license here in the past three days to get into this very building; isn’t that right, Mr. McGuire?

ANSWER: That’s correct.

(Trial Tr. Ill, at 35.) In fact, the only other red lettering that appears on an Alabama driver’s license is the State’s name.

However, important differences exist between ASORCNA’s license-labelling requirement and the “scarlet-letter-type punishment” referenced by the Eleventh Circuit in 664 F.3d at 855. Offenders have some degree of control over when and where to present an identification, unlike those during colonial times who had their transgressions aired publicly at all times, without any power to contain or control the extent or timing of the humiliation. Thus, while there may be other constitutional concerns with requiring registrants to carry a branded license, the court cannot say that the license-label-ling provision is closely analogous to the historical practice of public shaming.

Mr. McGuire also contends that ASORCNA’s community-notification provisions effectively amount to public shaming. Both the Supreme Court and the Eleventh Circuit have assessed the use of online, sex-offender registries in light of the traditional practice of public shaming, and each found sufficient differences between the historical punishment and modern registry regimes. Smith, 538 U.S. at 98, 123 S.Ct. 1140 (“[T]he stigma of Alaska’s Megan Laws results not from public display or ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.”); W.B.H., 664 F.3d at 855 (“The registries do not ‘stage[ ] a direct confrontation between the offender and the public.’ ”). Mr. McGuire, however, argues that ASORCNA far exceeds passive dissemination of truthful information, as authorized by Smith and W.B.H., because ASORCNA requires law-enforcement officers to notify every resident within a specific distance that a registrant has moved into the neighborhood, as well as every school and childcare facility in a three-mile radius of the registrant’s residency. Mr. McGuire notes that alongside the notification, each applicable party is also provided his picture, address, and a physical description.

It is true that the Court in Smith assessed a community-notification scheme that existed entirely online, with interested residents needing to take the “initial step” to search out information on registered sex offenders via the state’s website. In the case of ASORCNA, members of law enforcement are required to actively disseminate community-notification flyers to geographically applicable residences, schools, and childcare facilities. But, just as in ■ Alaska, the stigma that results from ASORCNA’s community-notification scheme flows from the “dissemination of accurate information about a criminal record, most of which is already public” and not from organized episodes of “face-to-face shaming.” 538 U.S. at 98, 123 S.Ct. 1140. Additionally, the Court in W.B.H. expressly stated that “registries do not ‘stage[] direct confrontation between the offender and the public’ ” and the same is true of the dissemination of flyers. W.B.H., 664 F.3d at 855. Accordingly, because ASORCNA’s community-notification flyers, like the registries in Smith and W.B.H., serve to inform the applicable public of truthful information in furtherance of public safety and do not initiate public displays of shaming, any comparison to the historical punishment of public shaming is attenuated.

iii. Parole and Probation

Mr. McGuire also contends that the requirements imposed by ASORCNA resemble the traditional punishments of parole and probation. To support his assertion, Mr. McGuire relies on a single Ohio district court case, Mikaloff v. Walsh. No. 5:06-CV-96, 2007 WL 2572268 (N.D.Ohio Sept. 4, 2007). In Mikaloff, the court found Ohio’s sex offender residency restriction to be sufficiently “analogous to the residency restrictions typical to probation and parole” because it gave law enforcement a perpetual, blanket veto power over registrants’ housing and did not provide a grandfather clause. Id. at *9 (explaining that “subjecting a sex offender to constant ouster from his or her home seem[ed like] a significant deprivation of liberty and property interests,” because “[i]t sentenced [him or her] to a life of transience [and] forc[ed] them to become nomads”).

Mr. McGuire alleges that ASORCNA’s requirements are equally analogous to parole and probation as the provision analyzed in Mikaloff. Specifically, he argues that ASORCNA gives Alabama’s law enforcement veto power over where a sex offender may reside, requires registrants to maintain constant contact with law enforcement, provides for criminal punishment upon violation, and restricts employment and travel. Two important differences exist, however, between the residency restriction dissected in Mikaloff and ASORCNA’s provisions. First, ASORCNA’s residency restrictions do not create the risk that offenders will be “sentence[d] ... to a life of transience” as Judge Gwin feared was possible in Mikaloff, 2007 WL 2572268, at *10. Unlike Ohio’s residency restriction, ASORC-NA explicitly states that “[c]hanges to property within 2,000 feet of a registered address of an adult sex offender which occur after the adult sex offender establishes residency shall not form the basis for finding that the adult sex offender is in violation” of the residency restrictions. Ala.Code § 15-20A-ll(c). Second, while ASORCNA openly restricts a registrant’s housing options and requires registrants to notify authorities of residential changes, no requirement exists that the offender must seek law-enforcement permission before making residency decisions. As a result, law enforcement is not given the same discretionary “veto power” that was described in Mikaloff.

Additionally, the Supreme Court provided some analytical assistance when it compared Alaska’s registration scheme to probation and supervised release for the purpose of determining whether Alaska’s statute imposed an affirmative restraint on sex offenders. The Court noted that “[probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in the case of infraction,” while Alaska registrants are free from direct supervision and any failure to comply with the reporting requirements would result in a criminal proceeding “separate from the individual's original offense.” Smith, 538 U.S. at 101-02, 123 S.Ct. 1140. Like the enforcement features in Smith, any prosecution for violating ASORCNA would occur in a proceeding entirely separate from the registrant’s original offense. Indeed, “unlike the restraints imposed on those who are on probation or supervised release, [ASORCNA’s requirements] are not conditions of release the violation of which could result in revocation and imposition of imprisonment without new criminal charges and another trial.” W.B.H., 664 F.3