source: Caselaw Access Project

author: Justice Kennedy Justice Thomas, Justice Souter, Justice Stevens, Justice Ginsburg,

license: Public Domain

text:
    SMITH et al. v. DOE et al.
    No. 01-729.
    Argued November 13, 2002
    Decided March 5, 2003

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 106. Souter, J., filed an opinion concurring in the judgment, post, p. 107. Stevens, J., filed a dissenting opinion, post,
      p. 110. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined, post, p. 114.

      John G. Roberts, Jr., argued the cause for petitioners. With him on the briefs were Jonathan S. Franklin, Catherine E. Stetson, Cynthia M. Cooper, and Bruce M. Botelho, Attorney General of Alaska.

      Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Dreeben, Patricia A. Millett, Leonard Schaitman, Mark W. Pennak, and Wendy M. Keats.

      Darryl L. Thompson argued the cause for respondents. With him on the brief was Verne E. Rupright.

      Briefs of amici curiae urging reversal were filed for the State of California ex rel. Bill Lockyer by Mr. Lockyer, Attorney General of California, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, Janet E. Neeley, Deputy Attorney General, Ken Salazar, Attorney General of Colorado, Alan Gilbert, Solicitor General, Donald S. Quick, Deputy Attorney General, Matthew S. Holman, Assistant Attorney General, and Robert R. Rigsby, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butter-worth of Florida, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Richard P. leyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, David Samson of New Jersey, Patricia A Madrid of New Mexico, Eliot Spitzer of New York, Wayne Stenehjem of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Anabelle Rodriguez of Puerto Rico, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Comyn of Texas, Mark L. Shuttleff of Utah, William H. Sorrell of Vermont, Iver A Stridiron of the Virgin Islands, Christine 0. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; and for the Council of State Governments et al. by Richard Ruda and James I. Crowley.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Lawrence S. Lustberg, Steven R. Shapiro, and Joshua L. Dratel; for Citizens for Penal Reform, Inc., by W. Andrew McCullough; for the Electronic Privacy Information Center by Marc Ro-tenberg; for the Massachusetts Committee for Public Counsel Services by Carol A. Donovan; for the Office of the Public Defender for the State of New Jersey et al. by Peter A Garcia, Michael Z. Buncher, Brian J. Neff, Richard S. Lehrich, and Edward Barocas; and for the Public Defender Service for the District of Columbia by James W Klein, Sarnia A Fam, and Corinne A Beckwith.

        Lucy A Dalglish and Gregg P. Leslie filed a brief for the Reporters Committee for Freedom of the Press as amicus curiae.

   Justice Kennedy

delivered the opinion of the Court.

The Alaska Sex Offender Registration Act requires convicted sex offenders to register with law enforcement authorities, and much of the information is made public. We must decide whether the registration requirement is a retroactive punishment prohibited by the Ex Post Facto Clause.

I

A

The State of Alaska enacted the Alaska Sex Offender Registration Act (Act) on May 12,1994. 1994 Alaska Sess. Laws ch. 41. Like its counterparts in other States, the Act is termed a “Megan’s Law.” Megan Kanka was a 7-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. The 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, title 17, 108 Stat. 2038, as amended, 42 U. S. C. § 14071, 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.

The Alaska law, which is our concern in this case, contains two components: a registration requirement and a notification system. Both are retroactive. 1994 Alaska Sess. Laws ch. 41, § 12(a). The Act requires any “sex offender or child kidnapper who is physically present in the state” to register, either with the Department of Corrections (if the individual is incarcerated) or with the local law enforcement authorities (if the individual is at liberty). Alaska Stat. §§ 12.63.010(a), (b) (2000). Prompt registration is mandated. If still in prison, a covered sex offender must register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the State. § 12.63.010(a). The sex offender must provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver’s license number, information about vehicles to which he has access, and postconviction treatment history. § 12.63.010(b)(1). He must permit the authorities to photograph and fingerprint him. § 12.63.010(b)(2).

If the offender was convicted of a single, nonaggra-vated sex crime, he must provide annual verification of the submitted information for 15 years. §§ 12.63.010(d)(1), 12.63.020(a)(2). If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. §§ 12.63.010(d)(2), 12.63.020(a)(1). The offender must notify his local police department if he moves. § 12.63.010(c). A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution. §§ 11.56.835, 11.56.840.

The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. § 18.65.087(a). Some of the data, such as fingerprints, driver’s license number, anticipated change of address, and whether the offender has had medical treatment afterwards, are kept confidential. §§ 12.63.010(b), 18.65.087(b). The following information is made available to the public: “the sex offender's or child kidnapper’s name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements ... or cannot be located.” § 18.65.087(b). The Act does not specify the means by which the registry information must be made public. Alaska has chosen to make most of the nonconfidential information available on the Internet.

B

Respondents John Doe I and John Doe II were convicted of sexual abuse of a minor, an aggravated sex offense. John Doe I pleaded nolo contendere after a court determination that he had sexually abused his daughter for two years, when she was between the ages of 9 and 11; John Doe II entered a nolo contendere plea to sexual abuse of a 14-year-old child. Both were released from prison in 1990 and completed rehabilitative programs for sex offenders. Although convicted before the passage of the Act, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with respondent Jane Doe, wife of John Doe I, brought an action under Rev. Stat. § 1979, 42 U. S. C. § 1983, seeking to declare the Act void as to them under the Ex Post Facto Clause of Article I, § 10, cl. 1, of the Constitution and the Due Process Clause of § 1 of the Fourteenth Amendment. The United States District Court for the District of Alaska granted summary judgment for petitioners. In agreement with the District Court, the Court of Appeals for the Ninth Circuit determined the state legislature had intended the Act to be a nonpunitive, civil regulatory scheme; but, in disagreement with the District Court, it held the effects of the Act were punitive despite the legislature’s intent. In consequence, it held the Act violates the Ex Post Facto Clause. Doe I v. Otte, 259 F. 3d 979 (2001). We granted certiorari. 534 U. S. 1126 (2002).

II

This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The framework for our inquiry, however, is well established. We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U. S. 346, 361 (1997). 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.’ ” Ibid. (quoting United States v. Ward, 448 U. S. 242, 248-249 (1980)). Because we “ordinarily defer to the legislature’s stated intent,” Hendricks, supra, at 361, “ ‘only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,” Hudson v. United States, 522 U. S. 93, 100 (1997) (quoting Ward, supra, at 249); see also Hendricks, supra, at 361; United States v. Ursery, 518 U. S. 267, 290 (1996); United States v. One Assortment of 89 Firearms, 465 U. S. 354, 365 (1984).

A

Whether a statutory scheme is civil or criminal “is first of all a question of statutory construction.” Hendricks, supra, at 361 (internal quotation marks omitted); see also Hudson, supra, at 99. We consider the statute’s text and its structure to determine the legislative objective. Flemming v. Nestor, 363 U. S. 603, 617 (1960). A conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it.

The courts “must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Hudson, supra, at 99 (internal quotation marks omitted). Here, the Alaska Legislature expressed the objective of the law in the statutory text itself. The legislature found that “sex offenders pose a high risk of reoffending,” and identified “protecting the public from sex offenders” as the “primary governmental interest” of the law. 1994 Alaska Sess. Laws ch. 41, § 1. The legislature further determined that “release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.” Ibid. As we observed in Hendricks, where we examined an ex post facto challenge to a postincareeration confinement of sex offenders, an imposition of restrictive measures on sex offenders adjudged to be dangerous is “a legitimate nonpunitive governmental objective and has been historically so regarded.” 521 U. S., at 363. In this case, as in Hendricks, “[njothing on the face of the statute suggests that the legislature sought to create anything other than a civil . . . scheme designed to protect the public from harm.” Id., at 361.

Respondents seek to cast doubt upon the nonpunitive nature of the law’s declared objective by pointing out that the Alaska Constitution lists the need for protecting the public as one of the purposes of criminal administration. Brief for Respondents 23 (citing Alaska Const., Art. I, § 12). As the Court stated in Flemming v. Nestor, rejecting an ex post facto challenge to a law terminating benefits to deported aliens, where a legislative restriction “is an incident of the State’s power to protect the health and safety of its citizens,” it will be considered “as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment.” 363 U. S., at 616 (citing Hawker v. New York, 170 U. S. 189 (1898)). The Court repeated this principle in 89 Firearms, upholding a statute requiring forfeiture of unlicensed firearms against a double jeopardy challenge. The Court observed that, in enacting the provision, Congress ‘was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest.’” 465 U. S., at 364 (quoting Huddleston v. United States, 415 U. S. 814, 824 (1974)). This goal was “plainly more remedial than punitive.” 465 U. S., at 364. These precedents instruct us that even if the objective of the Act is consistent with the purposes of the Alaska criminal justice system, the State’s pursuit of it in a regulatory scheme does not make the objective punitive.

Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature’s intent. See Hendricks, supra, at 361; Hudson, supra, at 103; 89 Firearms, supra, at 363. In this case these factors are open to debate. The notification provisions of the Act are codified in the State’s “Health, Safety, and Housing Code,” § 18, confirming our conclusion that the statute was intended as a nonpunitive regulatory measure. Cf. Hendricks, supra, at 361 (the State’s “objective to create a civil proceeding is evidenced by its placement of the Act within the [State’s] probate code, instead of the criminal code” (citations omitted)). The Act’s registration provisions, however, are codified in the State’s criminal procedure code, and so might seem to point in the opposite direction. These factors, though, are not dispositive. The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one. In 89 Firearms, the Court held a forfeiture provision to be a civil sanction even though the authorizing statute was in the criminal code. 465 U. S., at 364-365. The Court rejected the argument that the placement demonstrated Congress’ “intention to create an additional criminal sanction,” observing that “both criminal and civil sanctions may be labeled ‘penalties.’” Id., at 364, n. 6.

The same rationale applies here. Title 12 of Alaska’s Code of Criminal Procedure (where the Act’s registration provisions are located) contains many provisions that do not involve criminal punishment, such as civil procedures for disposing of recovered and seized property, Alaska Stat. § 12.36.010 et seq. (2000); laws protecting the confidentiality of victims and witnesses, § 12.61.010 et seq.; laws governing the security and accuracy of criminal justice information, §12.62.110 et seq.; laws governing civil postconviction actions, § 12.72.010 et seq.; and laws governing actions for writs of habeas corpus, § 12.75.010 et seq., which under Alaska law are “independent civil proceeding^],” State v. Hannagan, 559 P. 2d 1059, 1063 (Alaska 1977). Although some of these provisions relate to criminal administration, they are not in 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.

The procedural mechanisms to implement the Act do not alter our conclusion. After the Act’s adoption Alaska amended its Rules of Criminal Procedure concerning the acceptance of pleas and the entering of criminal judgments. The rule on pleas now requires the court to “infor[m] the defendant in writing of the requirements of [the Act] and, if it can be determined by the court, the period of registration required.” Alaska Rule Grim. Proc. 11(c)(4) (2002). Similarly, the written judgments for sex offenses and child kid-napings “must set out the requirements of [the Act] and, if it can be determined by the court, whether that conviction will require the offender or kidnapper to register for life or a lesser period.” Alaska Stat. § 12.55.148(a) (2000).

The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences themselves punitive. 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. The Act requires registration either before the offender’s release from confinement or within a day of his conviction (if the offender is not imprisoned). Timely and adequate notice serves to apprise individuals of their responsibilities and to ensure compliance with the regulatory scheme. Notice is important, for the scheme is enforced by criminal penalties. See §§11.56.835, 11.56.840. Although other methods of notification may be available, it is effective to make it part of the plea colloquy or the judgment of conviction. Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive.

Our conclusion is strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the authority to promulgate implementing regulations with the Alaska Department of Public Safety, §§ 12.63.020(b), 18.65.087(d) — an agency charged with enforcement of both criminal and civil regulatory laws. See, e. g., § 17.30.100 (enforcement of drug laws); § 18.70.010 (fire protection); § 28.05.011 (motor vehicles and road safety); §44.41.020 (protection of life and property). The Act itself does not require the procedures adopted to contain any safeguards associated with the criminal process. 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.” Ursery, 518 U. S., at 289 (internal quotation marks omitted; alteration in original).

We conclude, as did the District Court and the Court of Appeals, that the intent of the Alaska Legislature was to create a civil, nonpunitive regime.

B

In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), 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. See id., at 168-169, and nn. 22-28. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are “neither exhaustive nor disposi-tive,” United States v. Ward, 448 U. S., at 249; 89 Firearms, 465 U. S., at 365, n. 7, but are “useful guideposts,” Hudson, 522 U. S., at 99. The factors most relevant to our analysis 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.

A historical survey can be useful because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition, so that the public will recognize it as such. The Court of Appeals observed that the sex offender registration and notification statutes “are of fairly recent origin,” 259 F. 3d, at 989, which suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing. Respondents argue, however, that the Act — and, in particular, its notification provisions — resemble shaming punishments of the colonial period. Brief for Respondents 33-34 (citing A. Earle, Curious Punishments of Bygone Days 1-2 (1896)).

Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required “to stand in public with signs cataloguing their offenses.” Hirsch, From Pillory to Penitentiary: The Rise of Criminal Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1226 (1982); see also L. Friedman, Crime and Punishment in American History 38 (1993). At times the labeling would be permanent: A murderer might be branded with an “M,” and a thief with a “T.” R. Semmes, Crime and Punishment in Early Maryland 35 (1938); see also Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1913 (1991). The aim was to make these offenders suffer “permanent stigmas, which in effect cast the person out of the community.” Ibid.; see also Friedman, supra, at 40; Hirsch, supra, at 1228. The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one. T. Blomberg & K. Lucken, American Penology: A History of Control 30-31 (2000). Respondents contend that Alaska’s compulsory registration and notification resemble these historical punishments, for they publicize the crime, associate it with his name, and, with the most serious offenders, do so for life.

Any initial resemblance to early punishments is, however, misleading. Punishments such as whipping, pillory, and branding inflicted physical pain and staged a direct confrontation between the offender and the public. Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. See Earle, supra, at 20, 35-36, 51-52; Massaro, supra, at 1912-1924; Semmes, supra, at 39-40; Blomberg & Lucken, supra, at 30-31. By contrast, the stigma of Alaska’s Megan’s Law results not from public display for ridicule and shaming but from 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. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.

The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.

The State’s Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety’s Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska’s citizenry.

We next consider whether the Act subjects respondents to an “affirmative disability or restraint.” Mendoza-Martinez, supra, at 168. Here, we inquire how the effects of the Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive.

The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104. The Act’s obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive. See ibid, (forbidding further participation in the banking industry); De Veau v. Braisted, 363 U. S. 144 (1960) (forbidding work as a union official); Hawker v. New York, 170 U. S. 189 (1898) (revocation of a medical license). The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.

The Court of Appeals sought to distinguish Hawker and cases which have followed it on the grounds that the disability at issue there was specific and “narrow,” confined to particular professions, whereas “the procedures employed under the Alaska statute are likely to make [respondents] completely unemployable” because “employers will not want to risk loss of business when the public learns that they have hired sex offenders.” 259 F. 3d, at 988. This is conjecture. Landlords and employers could conduct background checks on the criminal records of prospective employees or tenants even with the Act not in force. The record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords. The Court of Appeals identified only one incident from the 7-year history of Alaska’s law where a sex offender suffered community hostility and damage to his business after the information he submitted to the registry became public. Id., at 987-988. This could have occurred in any event, because the information about the individual’s conviction was already in the public domain.

Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, 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.

The Court of Appeals reasoned that the requirement of periodic updates imposed an affirmative disability. In reaching this conclusion, the Court of Appeals was under a misapprehension, albeit one created by the State itself during the argument below, that the offender had to update the registry in person. Id., at 984, n. 4. The State’s representation was erroneous. The Alaska statute, on its face, does not require these updates to be made in person. And, as respondents conceded at the oral argument before us, the record contains no indication that an in-person appearance requirement has been imposed on any sex offender subject to the Act. Tr. of Oral Arg. 26-28.

The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint imposed. 259 F. 3d, at 987. This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally Johnson v. United States, 529 U. S. 694 (2000); Griffin v. Wisconsin, 483 U. S. 868 (1987). By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause.

The State concedes that the statute might deter future crimes. Respondents seize on this proposition to argue that the law is punitive, because deterrence is one purpose of punishment. Brief for Respondents 37. This 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.” Hudson, supra, at 105: see also Ursery, 518 U. S., at 292; 89 Firearms, 465 U. S., at 364.

The Court of Appeals was incorrect to conclude that the Act’s registration obligations were retributive because “the length of the reporting requirement appears to be measured by the extent of the wrongdoing, not by the extent of the risk posed.” 259 F. 3d, at 990. The Act, it is true, differentiates between individuals convicted of aggravated or multiple offenses and those convicted of a single'nonaggravated offense. Alaska Stat. § 12.63.020(a)(1) (2000). The broad categories, however, and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.

The Act’s rational connection to a nonpunitive purpose is a “[m]ost significant” factor in our determination that the statute’s effects are not punitive. Ursery, supra, at 290. As the Court of Appeals acknowledged, the Act has a legitimate nonpunitive purpose of “public safety, which is advanced by alerting the public to the risk of sex offenders in their community].” 259 F. 3d, at 991. Respondents concede, in turn, that “this alternative purpose is valid, and rational.” Brief for Respondents 38. They contend, however, that the Act lacks the necessary regulatory connection because it is not “narrowly drawn to accomplish the stated purpose.” Ibid. 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.” Hendricks, 521 U. S., at 371 (Kennedy, J., concurring).

In concluding the Act was excessive in relation to its regulatory purpose, the Court of Appeals relied in large part on two propositions: first, that the statute applies to all convicted sex offenders without regard to their future dangerousness; and, second, that it places no limits on the number of persons who have access to the information. 259 F. 3d, at 991-992. Neither argument is persuasive.

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. The risk of recidivism posed by sex offenders is “frightening and high.” McKune v. Lile, 536 U. S. 24, 34 (2002); see also id., at 33 (“When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault” (citing U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U. S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))).

The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. See De Veau, 363 U. S., at 160; Hawker, 170 U. S., at 197. As stated in Hawker: “Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application ....” Ibid. The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.

Our decision in Hendricks, on which respondents rely, Brief for Respondents 39, is not to the contrary. The State’s objective in Hendricks was involuntary (and potentially indefinite) confinement of “particularly dangerous individuals.” 521 U. S., at 357-358, 364. The magnitude of the restraint made individual assessment appropriate. The Act, by contrast, 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 prohibitions of the Ex Post Facto Clause.

The duration of the reporting requirements is not excessive. Empirical research on child molesters, for instance, has shown that, “[cjontrary to conventional wisdom, most re-offenses do not occur within the first several years after release,” but may occur “as late as 20 years following release.” National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U. S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 (1997).

The Court of Appeals’ reliance on the wide dissemination of the information is also unavailing. The Ninth Circuit highlighted that the information was available “world-wide” and “[b]roadcas[t]” in an indiscriminate manner. 259 F. 3d, at 992. As we have explained, however, the notification system is a passive one: An individual must seek access to the information. The Web site warns that the use of displayed information “to commit a criminal act against another person is subject to criminal prosecution.” http://www.dps.state. ak.us/nSorcr/asp/ (as visited Jan. 17, 2003) (available in the Clerk of Court’s case file). Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment. See D. Schram & C. Milloy, Community Notification: A Study of Offender Characteristics and Recidivism 13 (1995) (38% of recidivist sex offenses in the State of Washington took place in jurisdictions other than where the previous offense was committed).

The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the non-punitive objective. The Act meets this standard.

The two remaining Mendoza-Martinez factors — whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime — are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation.

Our examination of the Act’s effects leads to the determination that 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 nonpuni-tive, and its retroactive application does not violate the Ex Post Facto Clause. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas,

concurring.

I join the Court’s opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that “there is no place for [an implementation-based] challenge” in our ex post facto jurisprudence. Seling v. Young, 531 U. S. 250, 273 (2001) (Thomas, J., concurring in judgment). Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See id., at 273-274 (“[T]o the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the effect of its improper implementation”). As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining “the statute on its face.” Hudson v. United States, 522 U. S. 93, 100 (1997) (internal quotation marks omitted).

In this case, ASORA does not specify a means of making registry information available to the public. It states only that

“[i]nformation about a sex offender ... that is contained in the central registry ... is confidential and not subject to public disclosure except as to the sex offender’s . . . name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender... is in compliance with requirements of AS 12.63 or cannot be located.” Alaska Stat. § 18.65.087(b) (2000).

By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur.

Justice Souter,

concurring in the judgment.

I agree with the Court that Alaska’s Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment.

As the Court says, our cases have adopted a two-step en-quiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called Kennedy-Ward test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature’s preferred classification to the law’s substance, focusing on its purpose and effects. See United States v. Ward, 448 U. S. 242, 248-249 (1980); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963). We have said that “ ‘only the clearest proof’” that a law is punitive based on substantial factors will be able to overcome the legislative categorization. Ward, supra, at 249 (quoting Flemming v. Nestor, 363 U. S. 603, 617 (1960)). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See Hudson v. United States, 522 U. S. 93, 113-114 (1997) (Souter, J., concurring in judgment). This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way.

The Act does not expressly designate the requirements imposed as “civil,” a fact that itself makes this different from our past cases, which have relied heavily on the legislature’s stated label in finding a civil intent. See Hudson, supra, at 103; Kansas v. Hendricks, 521 U. S. 346, 361 (1997); Allen v. Illinois, 478 U. S. 364, 368 (1986). The placement of the Act in the State’s code, another important indicator, see Hendricks, supra, at 361, also leaves matters in the air, for although the section establishing the registry is among the code’s health and safety provisions, which are civil, see Alaska Stat. § 18.65.087 (2000), the section requiring registration occurs in the title governing criminal procedure, see § 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. § 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see Hudson, supra, at 103, offenders are obliged, at least initially, to register with state and local police, see §§ 12.63.010(b), (c), although the actual information so obtained is kept by the State’s Department of Publie Safety, a regulatory agency, see § 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute’s intended character is clearly civil.

The substantial indicators relevant at step two of the Kennedy-Ward analysis likewise point in different directions. To start with purpose, the Act’s legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, § 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e. g., United States v. Salerno, 481 U. S. 739, 747 (1987), and this objective should be given serious weight in the anal-yses. But, at the same time, it would be naive to look no further, given pervasive attitudes toward sex offenders, see infra this page and 110, n. See Weaver v. Graham, 450 U. S. 24, 29 (1981) (Ex Post Facto Clause was meant to prevent “arbitrary and potentially vindictive legislation”). The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See Kennedy, supra, at 169.

That argument can claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders’ names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e. g., Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1913 (1991). While the Court accepts the State’s explanation that the Act simply makes public information available in a new way, ante, at 99, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.

To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the “ ‘clearest proof’ ” of penal substance in this case, see Hudson, 522 U. S., at 113-114 (Souter, J., concurring in judgment), and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State’s law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court’s judgment.

Justice Stevens,

dissenting in No. 01-729 and concurring in the judgment in No. 01-1231.

These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-729 is whether the Alaska Sex Offender Registration Act is an ex 'post facto law, and in No. 01-1231 it is whether Connecticut’s similar law violates the Due Process Clause.

The Court’s opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a color-able constitutional claim. Cf. Meachum v. Fano, 427 U. S. 215 (1976). Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants’ freedom.

The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information — including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment — at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant’s face appears on a webpage under the label “Registered Sex Offender.” His physical description, street address, employer address, and conviction information are also displayed on this page.

The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the “[widespread public access,” ante, at 99 (opinion in No. 01-729), to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U. S. 433 (1971).

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

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

Likewise, in Kansas v. Hendricks, 521 U. S. 346 (1997), the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to.authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a “ ‘mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ” Id., at 352. Nor was the conviction even a necessary predicate for the commitment. See ibid. (Kansas’ civil commitment procedures also applied to individuals charged with a sexually violent offense but found incompetent to stand for trial, or found not guilty by reason of insanity or by reason of mental disease or defect). While one might disagree in other respects with Hendricks, it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute.

No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person’s liberty is punishment.

It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, “recidivism is the statutory concern” that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 105 (opinion in No. 01-729). That is the principal rationale that underlies the “three strikes” statute that the Court has upheld in Ewing v. California, ante, p. 11. Reliance on that rationale here highlights the conclusion that the retroactive application of these statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution.

I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment — retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to post-enactment offenses.

Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court’s disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-729.

Justice Ginsburg,

with whom Justice Breyer joins, dissenting.

As Justice Souter carefully explains, it is unclear whether the Alaska Legislature conceived of the State’s Sex Offender Registration Act as a regulatory measure or as a penal law. See ante, at 107-109 (opinion concurring in judgment). Accordingly, in resolving whether the Act ranks as penal for ex 'post facto purposes, I would not demand “the clearest proof” that the statute is in effect criminal rather than civil. Instead, guided by Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), I would neutrally evaluate the Act’s purpose and effects. See id., at 168-169 (listing seven factors courts should consider “[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute”); cf. Hudson v. United States, 522 U. S. 93, 115 (1997) (Breyer, J., concurring in judgment) (“[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand.”).

Measured by the Mendoza-Martinez factors, I would hold Alaska’s Act punitive in effect. Beyond doubt, the Act involves an “affirmative disability or restraint.” 372 U. S., at 168. As Justice Stevens and Justice Souter spell out, Alaska’s Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism. See ante, at 109, and n. (Souter, J., concurring in judgment); ante, at 111-112 (Stevens, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231).

Furthermore, the Act’s requirements resemble historically common forms of punishment. See Mendoza-Martinez, 372 U. S., at 168. Its registration and reporting provisions are comparable to conditions of supervised release or parole; its public notification regimen, which permits placement of the registrant’s face on a webpage under the label “Registered Sex Offender,” calls to mind shaming punishments once used to mark an offender as someone to be shunned. See ante, at 111-112 (Stevens, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231); ante, at 109 (SOUTER, J., concurring in judgment).

Telling too, as Justice Souter observes, past crime alone, not current dangerousness, is the “touchstone” triggering the Act’s obligations. Ibid, (opinion concurring in judgment); see ante, at 112-113 (Stevens, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). This touchstone adds to the impression that the Act retribu-tively targets past guilt, i. e., that it “revisit[s] past crimes [more than it] prevents] future ones.” Ante, at 109 (Souter, J., concurring in judgment); see Mendoza-Martinez, 372 U. S., at 168.

Tending the other way, I acknowledge, the Court has ranked some laws civil and nonpunitive although they impose significant disabilities or restraints. See, e. g., Flemming v. Nestor, 363 U. S. 603 (1960) (termination of accrued disability benefits payable to deported resident aliens); Kansas v. Hendricks, 521 U. S. 346 (1997) (civil confinement of mentally ill sex offenders). The Court has also deemed some laws non-punitive despite “punitive aspects.” See United States v. Ursery, 518 U. S. 267, 290 (1996).

What ultimately tips the balance for me is the Act’s ex-cessiveness in relation to its nonpunitive purpose. See Mendoza-Martinez, 372 U. S., at 169. As respondents concede, see Brief for Respondents 38, the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. See ante, at 102-103 (majority opinion). But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not to any determination of a particular offender’s risk of re-offending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. See ante, at 90. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.

John Doe I, for example, pleaded nolo contendere to a charge of sexual abuse of a minor nine years before the Alaska Act was enacted. He successfully completed a treatment program, and gained early release on supervised probation in part because of his compliance with the program’s requirements and his apparent low risk of reoffense. Brief for Respondents 1. He subsequently remarried, established a business, and was reunited with his family. Ibid. He was also granted custody of a minor daughter, based on a court’s determination that he had been successfully rehabilitated. See Doe I v. Otte, 259 F. 3d 979, 983 (CA9 2001). The court’s determination rested in part on psychiatric evaluations concluding that Doe had “a very low risk of re-offending” and is “not a pedophile.” Ibid, (internal quotation marks omitted). Notwithstanding this strong evidence of rehabilitation, the Alaska Act requires Doe to report personal information to the State four times per year, and permits the State publicly to label him a “Registered Sex Offender” for the rest of his life.

Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals.

      I seriously doubt that the Act’s requirements are “less harsh than the sanctions of occupational debarment” that we upheld in Hudson v. United States, 522 U. S. 93 (1997), De Veau v. Braisted, 363 U. S. 144 (1960), and Hawker v. New York, 170 U. S. 189 (1898). See ante, at 100. It is true that the Act imposes no formal proscription against any particular employment, but there is significant evidence of onerous practical effects of being listed on a sex offender registry. See, e. g., Doe v. Pataki, 120 F. 3d 1263, 1279 (CA2 1997) (noting “numerous instances in which sex offenders have suffered harm in the aftermath of notification — ranging from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson”); E. B. v. Verniero, 119 F. 3d 1077, 1102 (CA3 1997) (“The record documents that registrants and their families have experienced profound humiliation and isolation as a result of the reaction of those notified. Employment and employment opportunities have been jeopardized or lost. Housing and housing opportunities have suffered a similar fate. Family and other personal relationships have been destroyed or severely strained. Retribution has been visited by private, unlawful violence and threats and, while such incidents of ‘vigilante justice’ are not common, they happen with sufficient frequency and publicity that registrants justifiably live in fear of them”); Brief for Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (describing specific incidents).

      [This opinion applies also to No. 01-1231, Connecticut Dept. of Public Safety v. Doe, ante, p. 1.]

      The Mendoza-Martinez factors include “[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 [nonpunitive] purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.” 372 U. S., at 168-169.

       For the reasons stated by Justice Souter, see ante, at 109-110, n. (opinion concurring in judgment), I do not find the Court’s citations to Hawker v. New York, 170 U. S. 189 (1898), and De Vean v. Braisted, 363 U. S. 144 (1960), see ante, at 103-104 (majority opinion), convincingly responsive to this point.


author: Justice Souter

text:
    COOK COUNTY, ILLINOIS v. UNITED STATES ex rel. CHANDLER
    No. 01-1572.
    Argued January 14, 2003
    Decided March 10, 2003

      Souter, J., delivered the opinion for a unanimous Court.

      Donna M. Lack argued the cause for petitioner. With her on the briefs were Richard A. Devine, Patrick T Driscoll, Jr., Sanjay T Tailor, Jerold S. Solovy, and Barry Sullivan.

      Judson H. Miner argued the cause for respondent. With him on the brief were George F. Galland, Jr., and Charlotte Crane.

      Malcolm L. Stewart argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, Douglas N. Letter, and Michael E. Robinson.

      Briefs of amici curiae urging reversal were filed for the City of New York et al. by Michael A. Cardozo, Leonard J. Koerner, Gail Rubin, Mer-ita A. Hopkins, A. Scott Chinn, and Grant F. Langley; for the County of Orange, California, et al. by Walter Dellinger, Jonathan D. Hacker, and James R. Asperger; for 43 Local Governmental Airport Proprietors by Scott P. Lewis; for the National Association of Counties et al. by Richard Ruda, Robert K. Huffman, Miriam R. Nemetz, Charles A. Rothfeld, and Robert L. Bronston; for the National Association of Public Hospitals and Health Systems et al. by Ckarles Luband; and by the Texas Association of School Boards Legal Assistance Fund et al. by William J. Boyce and Warren S. Huang.

      Briefs of amici curiae urging affirmance were filed for K & R Limited Partnership et al. by Carl A. S. Coan III and Regina D. Poserina; and for Taxpayers Against Fraud, the False Claims Act Legal Center, by Charles J. Cooper, Brian Stuart Koukoutchos, and James Moorman.

        Michael P. Dignazio and Francis X. Crowley filed a brief as amicus curiae for the County of Delaware, Pennsylvania.

   Justice Souter

delivered the opinion of the Court.

In Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 (2000), we held that States are not “persons” subject to qui tam actions under the False Claims Act (FCA), 31 U. S. C. §§ 3729-3733. Here, the question is whether local governments are amenable to such suits, and we hold that they are.

I

Stevens, supra, at 768-770, explains in some detail how the FCA currently provides for civil penalties against “[a]ny person” who (so far as it concerns us here) “knowingly presents, or causes to be presented, to an officer or employee of the United States Government... a false or fraudulent claim for payment or approval.” § 8729(a)(1). Although the Attorney General may sue under the FCA, so may a private person, known as a relator, in a qui tam action brought “in the name of the Government,” but with the hope of sharing in any recovery. § 3730(b). The relator must inform the Department of Justice of her intentions and keep the pleadings under.seal for 60 days while the Government decides whether to intervene and do its own litigating. § 3730(b)(2); see also § 3730(c). If the claim succeeds, the defendant is liable to the Government for a civil penalty between $5,000 and $10,000 for each violation, treble damages (reducible to double damages for cooperative defendants), and costs. § 3729(a). The relator’s share of the “proceeds of the action or settlement” may be up to 30 percent, depending on whether the Government intervened and, if so, how much the relator contributed to the prosecution of the claim. § 3730(d). The relator may also get reasonable expenses, costs, and attorney’s fees. Ibid.

The fraud in this case allegedly occurred in administering a $5 million grant from the National Institute of Drug Abuse to Cook County Hospital, owned and operated as the name implies, with the object of studying a treatment regimen for pregnant drug addicts. The grant was subject to a variety of conditions, including the terms of a compliance plan meant to assure that the study would jibe with federal regulations for research on human subjects. Administration of the study was later transferred to the Hektoen Institute for Medical Research, a nonprofit research organization affiliated with the hospital. Respondent, Dr. Janet Chandler, ran the study from September 1993 until the institute fired her in January 1995.

In 1997, Chandler filed this qui tam action, claiming that Cook County (hereinafter County) and the institute had submitted false statements to obtain grant funds in violation of § 3729(a)(1). Chandler said that the defendants had violated the grant’s express conditions, had failed to comply with the regulations on human-subject research, and had submitted false reports of what she called “ghost” research subjects. Chandler also alleged that she was fired for reporting the fraud to doctors at the hospital and to the granting agency, rendering her dismissal a violation of both state law and the whistle-blower provision of the FCA, § 3730(h). The Government declined to intervene in the action.

The County moved to dismiss the claims against it, arguing, among other things, that it was not a “person” subject to liability under the FCA. The District Court denied the motion, reading the term “person” in the FCA to include state and local governments. United States ex rel. Chandler v. Hektoen Institute for Medical Research, 35 F. Supp. 2d 1078 (ND Ill. 1999). The Court of Appeals dismissed the County’s interlocutory appeal, and we denied certiorari. 528 U. S. 931 (1999). After Stevens came down, however, the District Court reconsidered the County’s motion and dismissed Chandler’s action. Although the court found “no reason to alter its conclusion that the County is a ‘person’ for purposes of the FCA,” it held that the County, like a State, could not be subjected to treble damages, which Stevens, supra, at 784, described not as “remedial” but as “essentially punitive.” 118 F. Supp. 2d 902, 903 (2000). The Court of Appeals, in conflict with two other Circuits, distinguished Stevens and reversed, 277 F. 3d 969 (CA7 2002). We granted certiorari, 536 U. S. 956 (2002), and now affirm the Court of Appeals.

II

While §3729 does not define the term “person,” we have held that its meaning has remained unchanged since the original FCA was passed in 1863. Stevens, 529 U. S., at 783, n. 12. There is no doubt that the term then extended to corporations, the Court in 1826 having expressly recognized the presumption that the statutory term “person” “ ‘extends as well to persons politic and incorporate, as to natural persons whatsoever.’ ” United States v. Amedy, 11 Wheat. 392, 412 (1826) (quoting 2 E. Coke, The Second Part of the Institutes of the Laws of England 736 (1787 ed.) (reprinted in 5B 2d Historical Writings in Law and Jurisprudence (1986)); see 11 Wheat., at 412 (“That corporations are, in law, for civil purposes, deemed persons, is unquestionable”); accord, Beaston v. Farmers’ Bank of Del., 12 Pet. 102, 135 (1838); see also Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 667 (1819) (opinion of Story, J.) (A corporation “is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises which, though they must be exercised through the medium of its natural members, are yet considered as subsisting in the corporation itself, as distinctly as if it were a real personage”). This position accorded with the common understanding among contemporary commentators that corporations were “persons” in the general enjoyment of the capacity to sue and be sued. See, e. g., 2 J. Bouvier, A Law Dictionary 332 (6th ed. 1856) (def. 2: The term “person” “is also used to denote a corporation which is an artificial person”); 1 S. Kyd, A Treatise on the Law of Corporations 13 (1793) (“A corporation then, or a body politic, or body incorporate, is a collection of many individuals, united into one body, . . . and vested, by the policy of the law, with the capacity of acting, in several respects, as an individual, particularly of taking and granting property, of contracting obligations, and of suing and being sued . . .”). While it is true that Chief Justice Marshall’s opinion in Bank of United States v. Deveaux, 5 Cranch 61, 86-87 (1809), declined to rely on the presumption when it decided the separate issue whether a corporation was a “citizen” for purposes of federal diversity jurisdiction, by 1844 the Deveaux position had been abandoned and a corporation was understood to have citizenship independent of its constituent members by virtue of its status as “a person, although an artificial person.” Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558 (1844); see 1 A. Burrill, A Law Dictionary and Glossary 383 (2d ed. 1859) (“A corporation has been declared to be not only a person, ... but to be capable of being considered an inhabitant of a state, and even of being treated as a citizen, for all purposes of suing and being sued”).

Essentially conceding that private corporations were taken to be persons when the FCA was passed in 1863, the County argues that municipal corporations were not so understood until six years later, when Cowles v. Mercer County, 7 Wall. 118 (1869), applied the Letson rule to them. Cowles, however, was not an extension of principle but a natural recognition of an understanding going back at least to Coke, supra, that municipal corporations and private ones were simply two species of “body politic and corporate,” treated alike in terms of their legal status as persons capable of suing and being sued. See, e. g., W. Glover, A Practical Treatise on the Law of Municipal Corporations 41 (1837) (Municipal corporations have, as an attribute “necessarily and inseparably incident to every corporation,” the ability “[t]o sue or be sued, . . . and do all other acts as natural persons may”); see also 1 J. Dillon, The Law of Municipal Corporations 92 (rev. 2d ed. 1873). Indeed, “[t]he archetypal American corporation of the eighteenth century [was] the municipality”; only in the early 19th century did private corporations become widespread. M. Horwitz, The Transformation of American Law, 1780-1860, p. 112 (1977). This history explains how the Court in Cowles could conclude “automatically and without discussion” that municipal corporations, like private ones, “should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.” Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 687-688 (1978); see Cowles, supra, at 121 (describing the question as one that “presents but little difficulty”).

Of course, the meaning of “person” recognized in Cowles is the usual one, but not immutable, see Monell, supra, at 688, and the County asks us to take a cue from the qualification included in the later definition in the Dictionary Act, Act of Feb. 25, 1871, §2, 16 Stat. 431, that “the word ‘person’ may extend and be applied to bodies politic and corporate . . . unless the context shows that [it was] intended to be used in a more limited sense.” Cf. J. Angell & S. Ames, A Treatise on the Law of Private Corporations Aggregate 4 (rev. 3d ed. 1846) (“The construction is, that when ‘persons’ are mentioned in a statute, corporations are included if they fall within the general reason and design of the statute”). The County invokes two points of context that it takes as indicating that in the FCA Congress intended a more limited meaning.

First, it says that the statutory text is “inherently inconsistent with local governmental liability,” Brief for Petitioner 13, owing to the references of the original enactment to “any person in the land or naval forces of the United States” and “any person not in the military or naval forces of the United States,” together with a provision imposing criminal liability, including imprisonment, on defendants in the latter category, see Act of Mar. 2, 1863, ch. 67, §§ 1, 3, 12 Stat. 696, 697, 698. But the old text merely shows that “any person in the land or naval forces” was directed at natural persons. The second phrase, covering all other “persons,” could not have been that limited, or even private corporations would be outside the FCA’s coverage, a reading that not even the County espouses and one that we seriously doubted in Stevens, 529 U. S., at 782. As for the FCA’s reference to criminal liability, “[t]he short answer is that it has not been regarded as anomalous to require compliance by municipalities with the substantive standards of... federal laws which impose [both civil and criminal] sanctions upon 'persons.’ ” Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 400 (1978). Municipalities may not be susceptible to every statutory penalty, but that is no reason to exempt them from remedies that sensibly apply. Id., at 400-401; United States v. Union Supply Co., 215 U. S. 50, 54-55 (1909).

The other contextual evidence cited by the County is the history of the FCA. We recounted in Stevens that Congress’s primary concern in 1863 was “ 'stopping the massive frauds perpetrated by large [private] contractors during the Civil War.’ ” 529 U. S., at 781 (quoting United States v. Bornstein, 423 U. S. 303, 309 (1976), but adding “[private]”). Local governments, the County says, were not players in the game of war profiteering that the FCA was meant to stop. Of course, this is true, but in no way does it affect the fact that Congress wrote expansively, meaning “to reach all types of fraud, without qualification, that might result in financial loss to the Government.” United States v. Neifert-White Co., 390 U. S. 228, 232 (1968). Whatever municipal corporations may have been doing in 1863, in 2003 local governments are commonly at the receiving end of all sorts of federal funding schemes and thus no less able than individuals or private corporations to impose on the federal fisc and exploit the exercise of the federal spending power. Cf. Monell, supra, at 685-686 (noting that municipalities can, “equally with natural persons, create the harms intended to be remedied [by 42 U. S. C. § 1983]”). In sum,' neither history nor text points to exclusion of municipalities from the class of “persons” covered by the FCA in 1863.

► — 1 HH HH

Nor is the application of this reading of the statute affected by the County’s alternative position, based on the evolution of the FCA’s provisions for relief. The County’s argument leads off, at least, with a sound premise about the historical tension between municipal liability and damages imposed as punishment. Although it was well established in 1863 “that a municipality, like a private corporation, was to be treated as a natural person subject to suit for a wide range of tortious activity, . . . this understanding did not extend to the award of punitive or exemplary damages,” Newport v. Fact Concerts, Inc., 453 U. S. 247, 259-260 (1981). Since municipalities’ common law resistance to punitive damages still obtains, “[t]he general rule today is that no punitive damages are allowed unless expressly authorized by statute.” Id., at 260, n. 21.

The County relies on this general statement in asking us to infer a remarkable consequence unstated in the 1986 amendments to the FCA. As part of an effort to modernize the FCA, Congress then raised the fine from $2,000 to the current range of $5,000 to $10,000, and raised the ceiling on damages recoverable under § 3729(a) from double to treble. False Claims Amendments Act of 1986, Pub. L. 99-562, § 2(7), 100 Stat. 3153. In Stevens, we spoke of this change as turning what had been a “remedial” provision into an “essentially punitive” one. 529 U. S., at 784, 785. The County relies on this characterization to argue that, even if municipalities were covered by the term “person” from 1863 to 1986, Congress’s adoption of a “punitive” remedy entailed the elimination of municipal liability in 1986.

Although we did indeed find the punitive character of the treble damages provision a reason not to read “person” to include a State, see id., at 785, it does not follow that the punitive feature has the force to show congressional intent to repeal implicitly the existing definition of that word, which included municipalities. To begin with it is important to realize that treble damages have a compensatory side, serving remedial purposes in addition to punitive objectives. See, e. g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 635-636 (1985) (citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U. S. 477, 485-486 (1977)); American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U. S. 556, 575 (1982); see also Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 151 (1987). While the tipping point between payback and punishment defies general formulation, being dependent on the workings of a particular statute and the course of particular litigation, the facts about the FCA show that the damages multiplier has compensatory traits along with the punitive.

There is no question that some liability beyond the amount of the fraud is usually “necessary to compensate the Government completely for the costs, delays, and inconveniences occasioned by fraudulent claims.” Bornstein, supra, at 315; see United States v. Halper, 490 U. S. 435, 445 (1989) (noting that the Government’s injury includes “not merely the amount of the fraud itself, but also ancillary costs, such as the costs of detection and investigation, that routinely attend the Government’s efforts to root out deceptive practices directed at the public purse”). The most obvious indication that the treble damages ceiling has a remedial place under this statute is its qui tam feature with its possibility of diverting as much as 30 percent of the Government’s recovery to a private relator who began the action. In qui tam cases the rough difference between double and triple damages may well serve not to punish, but to quicken the self-interest of some private plaintiff who can spot violations and start litigating to compensate the Government, while benefiting himself as well. See United States ex rel. Marcus v. Hess, 317 U. S. 537, 547 (1943). The treble feature thus leaves the remaining double damages to provide elements of make-whole recovery beyond mere recoupment of the fraud. Cf. Bornstein, 423 U. S., at 315, and n. 11. It may also be necessary for full recovery even when there is no qui tam relator to be paid. The FCA has no separate provision for prejudgment interest, which is usually thought essential to compensation, see, e. g., Kansas v. Colorado, 533 U. S. 1, 10-11 (2001), and might well be substantial given the FCA’s long statute of limitations, § 3731(b). Nor does the FCA expressly provide for the consequential damages that typically come with recovery for fraud, see Restatement (Second) of Torts § 549(1)(b), and Comment d (1976).

Thus, although Stevens recognized that the FCA’s treble damages remedy is still “punitive” in that recovery will exceed full compensation in a good many cases, the force of this punitive nature in arguing against municipal liability is not as robust as if it were a pure penalty in all cases. Treble damages certainly do not equate with classic punitive damages, which leave the jury with open-ended discretion over the amount and so raises two concerns specific to municipal defendants. One is that a local government’s taxing power makes it an easy target for an unduly generous jury. See Newport, 453 U. S., at 270-271. But under the FCA, the jury is open to no such temptation; if it finds liability, its instruction is to return a verdict for actual damages, for which the court alone then determines any multiplier, just as the court alone sets any separate penalty. § 3729(a); see 277 F. 3d, at 978. There is mitigation, also, for the second worry, that “blameless or unknowing taxpayers” will be unfairly taxed for the wrongdoing of local officials. Newport, 453 U. S., at 267. This very case shows how FCA liability may expose only local taxpayers who have already enjoyed the indirect benefit of the fraud, to the extent that the federal money has already been passed along in lower taxes or expanded services. Cf. ibid. The question in such cases is whether the local taxpayer should make up for an undeserved benefit, or the federal taxpayer be permanently out of pocket, a question that can be answered in any given case, not by an opportunistic qui tam relator, but by a combination of the judge’s discretion and the Government’s power to intervene and dismiss or settle an action, see § 3730(c)(2).

The presumption against punitive damages thus brings only limited vigor to the County’s aid. Working against the County’s position, however, is a different presumption, this one at full strength: the “cardinal rule . . . that repeals by implication are not favored.” Posadas v. National City Bank, 296 U. S. 497, 503 (1936). Inferring repeal from legislative silence is hazardous at best, and error seems overwhelmingly likely in the notion that the 1986 amendments wordlessly redefined “person” to exclude municipalities. The County’s argument, it must be remembered, is not merely that the treble damages feature of the 1986 amendments was meant to bypass municipal corporations; the argument is that the treble damages amendment must be read to eliminate the FCA’s coverage of municipal corporations entirely, after being the statutory law for over a century. This would be a hard case to make in the abstract, but it is impossible when we consider what is known about the object of the amendments in 1986.

The basic purpose of the 1986 amendments was to make the FCA a “more useful tool against fraud in modern times.” S. Rep., at 2. Because Congress was concerned about pervasive fraud in “all Government programs,” ibid., it allowed private parties to sue even based on information already in the Government’s possession, see Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 946 (1997); increased the Government’s measure of recovery; and enhanced the incentives for relators to bring suit. Yet the County urges that in so doing Congress made local governments, which today often administer or receive federal funds, immune not only from treble damages but from any liability whatsoever under the FCA. Congress could have done that, of course, but it makes no sense to suggest Congress did it under its breath. It is simply not plausible that Congress intended to repeal municipal liability sub silentio by the very Act it passed to strengthen the Government’s hand in fighting false claims. See Burns v. United States, 501 U. S. 129, 136 (1991).

>

The term “person” in § 3729 included local governments m 1863 and nothing in the 1986 amendments redefined it. The judgment of the Court of Appeals is

Affirmed.

       The statutory penalties are adjusted upward for inflation under the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410, §5, 104 Stat. 891, note following 28 U. S. C. §2461. The penalty is currently $5,500 to $11,000. 28 CFR § 85.3(a)(9) (2002).

       If the Government does not intervene, the relator is entitled to 25 to 30 percent of the proceeds. 31 U. S. C. § 3730(d)(2). If the Government chooses to intervene, the relator “shall.. . receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.” § 3730(d)(1). If, however, the court determines that the action was “based primarily on disclosures of specific information (other than information provided by the person bringing the action) relating to allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds . . . .” Ibid. (footnote omitted).

       The hospital was originally a defendant as well but was dismissed from the case as having no identity independent of the County. 277 F. 3d 969, 971, n. 2 (CA7 2002).

       Chandler’s retaliation claims against the County were dismissed because the institute, not the County, was her employer. United States ex ret. Chandler v. Hektoen Institute for Medical Research, 35 F. Supp. 2d 1078, 1087 (ND Ill. 1999).

       The institute also moved to dismiss, on different grounds; the denial of that motion is not before us. 277 F. 3d, at 969, n. 1.

        United States ex rel. Dunleavy v. County of Delaware, 279 F. 3d 219 (CA3 2002); United States ex rel. Garibaldi v. Orleans Parish School Bd., 244 F. 3d 486 (CA5 2001).

       The County and some of its supporting amici urge a further distinction between full-fledged municipal corporations such as towns and cities, which were incorporated at the request of their inhabitants, and “quasi corporations” such as counties, which were unilateral creations of the State. See Barnes v. District of Columbia, 91 U. S. 540, 552 (1876). While the liability of quasi corporations at common law may have differed from that of municipal corporations, see ibid,., both were treated equally as legal “persons.” Indeed, Cowles itself applied to an Illinois county like Cook County.

       The FCA’s civil and criminal provisions were bifurcated in 1878, see Rainwater v. United States, 356 U. S. 590, 592, n. 8 (1958), and the latter provisions have since been recodified at 18 U. S. C. § 287.

       The treble damages provision was, in a way, adopted by Congress as a substitute for consequential damages. The Senate version of the bill proposed consequential damages on top of treble damages, while the House version proposed consequential damages plus double damages. See S. Rep. No. 99-345, p. 39 (1986) (hereinafter S. Rep.); H. R. Rep. No. 99-660, p. 20 (1986). Ultimately, the Senate’s treble figure was adopted and the consequential damages provision dropped.

       Indeed, there is some evidence that Congress affirmatively endorsed municipal liability when it passed the 1986 amendments. See S. Rep., at 8 (noting that “[t]he term ‘person’ is used in its broad sense to include partnerships, associations, and corporations... as well as States and political subdivisions thereof” (citing, inter alia, Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978))). Although in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 (2000), we considered this evidence insufficient to overcome the background presumption that States are not “persons,” in the present ease the statement belies the County’s argument that Congress meant to change the contrary presumption applicable to local governments and to remove municipal liability.

       The presumption against implied repeal also explains why two of the County’s subsidiary arguments cannot succeed here, despite the fact that we gave them credence in Stevens. First, the County contrasts §3729 with the Civil Investigative Demand provision enacted as part of the 1986 amendments, §3733, which expressly includes both States and local governments in the definition of “person.” In Stevens, supra, at 783-784, we read that express reference in the later §3733 to confirm the reading of the earlier § 3729, which was based on a common understanding in 1863 that “person” did not include a State; but “person” did presumptively include a municipality in 1863.
      The County also argues it is not sensible to expose local governments to FCA liability but not to liability under the Program Fraud Civil Remedies Act of 1986 (PFCRA), Pub. L. 99-509, 100 Stat. 1934 (codified at 31 U. S. C. §3801 et seq.), a statute enacted just before the FCA amendments and “designed to operate in tandem with the FCA.” Stevens, supra, at 786, n. 17. The PFCRA prohibits the same conduct as the FCA and specifically defines a “person” subject to liability as “any individual, partnership, corporation, association, or private organization.” § 3801(a)(6). Even assuming the County is correct that local governments are not covered by the PFCRA despite the term “corporation,” this is hardly a weighty argument for an implied repeal of municipal liability under the FCA, a separately enacted statute.