Doe v. Department of Public Safety & Correctional Services

Concurring Opinion by HARRELL, J. I write separately because, although I would give John Doe relief, I would not grant relief on the same basis as the Plurality opinion. Instead, I would direct specific performance of Mr. Doe’s guilty plea, not to include requirement of registration as a child sexual offender. The Plurality opinion posits its granting of relief solely on its ex post facto analysis under Article 17 of the Maryland Declaration of Rights. I would not do so.

The reasoning of the Plurality opinion is faulty and, therefore, so is its conclusion. To my mind, a correct reading of Article 17 and the most relevant cases leads to the conclusion that Doe is not entitled to the relief he seeks on the constitutional arguments he makes. Since 2009, several amendments to the Maryland Sex Offender Registration Act have been adopted, including, but not limited to: (1) adding juvenile sex offenders to the list of those who must register; (2) requiring registration statements to include a list of aliases, electronic email addresses, computer screen names, or any name by which the registrant had been legally known; (8) requiring tier III offenders (such as Doe) to register in person every three months for life; (4) requiring that registrants provide three days notice after changing addresses; (5) ordering registrants to notify law enforcement, prior to the relocation, when the registrant obtains a temporary residence or changes the location where the registrant resides or “habitually lives” for more than 5 days; (6) requir ⁵⁷⁰ ing homeless registrants to register in person with the local law enforcement in each county where the registrant habitually lives; (7) publicize registration information on the Internet; and (8) granting the Department of Public Safety and Correctional Services and law enforcement the discretion to provide notice of a registration statement or a registrant’s change of address to whomever they deem necessary so as to protect the public from the registrant. See Md.Code (2008 Repl.Vol., 2010 Supp.), Crim.

Proc. Art., §§ 11-701, 11-705, 11-706, 11-717, 11-718. Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003), and Young v. State, 370 Md. 686 , 806 A.2d 233 (2002), are the two leading cases addressing ex post facto challenges to sex offender registration statutes. 1 Both cases employ the “intent-effects” test to determine whether a statute violates ex post facto clauses: first, the court must consider the legislative intent of the statute; second, even if the statute’s stated purpose is non-punitive, the court must assess whether its effect overrides the legislative purpose to render the statute punitive. 2 Smith, 538 US. at 92, 123 S.Ct. at 1146-47 , 155 L.Ed.2d at 176 (2003). To assess the effects of a statute, a ⁵⁷¹ court must consider several factors, derived from Kennedy v. Mendoza-Martinez, 372 U.S. 144 , 83 S.Ct. 554 , 9 L.Ed.2d'644 (1963). 3 Smith and Young held that the statutes at issue were intended as civil remedies because the primary government interest was to protect the public from sex offenders.

Smith, 538 U.S. at 93-94 , 123 S.Ct. at 1147 , 155 L.Ed.2d at 177 ; Young, 370 Md. at 712 , 806 A.2d 233, 248 . Although the Maryland registration statute does not state expressly its legislative purpose, the Court of Appeals found in Young that the statute’s overall design and plain language indicate that it was intended as a “regulatory requirement” aimed to protect the public rather than to punish or stigmatize offenders. Young, 370 Md. at 712 , 806 A.2d at 248 . This was true, the Court noted, even if the 2002 statute was codified (as is the current registration statute) in the Maryland Criminal Procedure Article, or even if registration is triggered by a criminal conviction.

Id. at 712, 714 , 806 A.2d at 248-49 . The Supreme Court in Smith also came to the same conclusion, even if Alaska — similar to Maryland — required that defendants be notified about the statute’s requirements. Smith, 538 U.S. at 95-96 , 123 S.Ct. at 1148-49 , 155 L.Ed.2d at 178-79 ; see also Md. Rule 4-242 (2012). Nevertheless, significant revisions to the Maryland registration statute have occurred since the Young court reviewed the statute in 2002.

The Supreme Court in Smith and the Court of Appeals in Young concluded that registration statutes traditionally have “not been regarded as punishment,” 370 Md. at 714 , 806 A.2d at 250 , particularly if the State does not make “the publicity and the resulting stigma an integral part of the ⁵⁷² objective of the regulatory scheme” but rather to protect the public. Smith, 588 U.S. at 98-99, 128 S.Ct. at 1150, 155 L.Ed.2d at 180-81 . Disseminating registrants’ basic registry information, without further government involvement, is a reasonable civil deterrent remedy. Young, 370 Md. at 714-15 , 806 A.2d at 250 ; see also Smith, 538 U.S. at 102-103 , 123 S.Ct. at 1152 , 155 L.Ed.2d at 183 .

Yet, the Supreme Court noted that if a state provides the public “with means to shame the offender by, say, posting comments underneath his record” on the registry web site, dissemination of registry information may resemble the public shaming punishments of the colonial period. Smith, 538 U.S. at 99 , 123 S.Ct. at 1150-51 , 155 L.Ed.2d at 181 . Currently, the Maryland registry web site allows any person to post comments, that are available for the public to view, below a registrant’s profile. A second factor to consider is whether the registration statute imposes impermissibly an affirmative disability or restraint on registrants.

A registration statute involves an affirmative disability or restraint when either result would occur, apart from consequences common to registering as a sex offender, such as inability to find work or housing due to employers’ or landlords’ routine background and criminal checks, or seeking permission before changing jobs or residences. Id. at 100 , 123 S.Ct. at 1151 , 155 L.Ed.2d at 181-82 . In-person registration requirements, however, may involve punitive restraints. Id.

Currently, Maryland’s registration statute, as noted above, requires in-person registration for tier III offenders, such as Doe, every three months for life. See Md.Code, Crim. Proc. Art., § 11-707(a).

The Young court recognized that, although basic registrant-identifying information was “not unreasonably burdensome,” the community notification provisions of the statute imposed “highly stigmatizing” labels. 370 Md. at 713 , 806 A.2d at 249 . These labels carried “the potential for social ostracism” because the statute allowed for dissemination of non-public and sensitive information about registrants, such as treatment received for personality disorder or a mental abnormality. Id. This risk is present potentially with Maryland’s statute, which ⁵⁷³ requires registrants to inform the State on every change of location, including any place in which a registrant “habitually lives” or stays for more than five days, and also allows the Department or law enforcement to share the information with anyone when it is necessary to do so to protect the public.

See Md.Code, Crim. Proc. Art. §§ 11-705(i), 11-718(a). Furthermore, both Smith and Young relied on the state legislatures’ conclusions that sex offenders pose a substantial risk of recidivism.

See Smith, 538 U.S. at 102 , 123 S.Ct. at 1152 , 155 L.Ed.2d at 183 ; Young, 370 Md. at 715 , 806 A.2d at 250 . A state can use reasonable means to legislate with regard to convicted sex offenders as a class; thus, requiring an “individual determination of their dangerousness” does not convert the statute into a punishment under the ex post facto clause. Smith, 538 U.S. at 103-04 , 123 S.Ct. at 1153 , 155 L.Ed.2d at 183-84 . As long as a registration statute is tailored narrowly to prevent repetition of sex offenses and requires only qualifying sex offenders to register, as the Court found § 792 did in Young , it is not excessive in its deterrent purpose.

See Young, 370 Md. at 715 , 806 A.2d at 250 . New research since 2002, however, presents a different policy perspective to Young’s holding. Applying such a broad-reaching statute like Maryland’s to any qualifying sex offender without particularized determinations of recidivism may undermine the law’s intent to prevent the repetition of sex offenses Indeed, recent research reports that broad-reaching sex offender registration and notification laws do not reduce recidivism by sex offenders. See, e.g., Catherine L. Carpenter, Legislative Epidemics: A Cautionary Tale of Criminal Laws that Have Swept the Country, 58 Buff.

L.Rev. 1, 58-59 (2010) (noting that, “[djespite the persistent statements that expansive sex offender registration laws are essential tools to protect the community,” the efficacy of such laws is in doubt); see also Human Rights Watch, No Easy Answers: Sex Offender Laws in the U.S. 21-33 (Sept.2007). Several states have used such findings to hold that their sex offender registration statutes constitute retroactive punishment in violation ⁵⁷⁴ of state or federal prohibitions of ex post facto laws, primarily based on the lack of any determination of future dangerousness before or after an offender is required to register. See, e.g., State v. Williams, 129 Ohio St.Sd 344, 952 N.E.2d 1108, 1113 (2011); State v. Letalien, 985 A.2d 4 (Me.2009); Wallace v. State, 905 N.E.2d 371 (Ind.2009); Commonwealth v. Baker, 295 S.W.3d 437 (Ky.2009); Doe v. State, 189 P.3d 999, 1019 (Alaska 2008). The Court in Young noted that the consequences of the 2002 Maryland registration statute’s widespread community notification — namely, stigmatization, social ostracism, loss of employment, and harassment — implicate liberty and privacy interests inherent to due process. 370 Md. at 713 , 806 A.2d at 249 .

To raise a successful due process challenge involving damage to reputation, the “stigma-plus test” requires that, in addition to harming the plaintiffs reputation, the state’s conduct must have harmed the plaintiff in an additional way. Doe v. Dep’t of Pub. Safety & Corr. Servs., 185 Md.App. 625, 644 , 971 A.2d 975, 986 (2009).

The “plus” factor is met either by a violation of a “fundamental right” guaranteed by the U.S. Constitution or “the denial of a state-created property or liberty interest such that the Fourteenth Amendment’s Due Process Clause is violated.” Id. at 639, 643-44 , 971 A.2d at 983-84 , 986-87 (quoting Cooper v. Dupnik, 924 F.2d 1520 , 1532 n. 22 (9th Cir.1989)). Conversely, procedural due process guarantees an opportunity for a hearing to establish a material fact when a claimant has suffered a deprivation of life, liberty, or property. Conn. Dep’t of Pub.

Safety v. Doe, 538 U.S. 1, 4 , 123 S.Ct. 1160, 1162-63 , 155 L.Ed.2d 98, 102 (2003). Doe contends that the statutory requirements harmed his reputation and his “fundamental” rights to property, privacy, and employment, and that he has a procedural due process right to an individualized determination of his imputed dangerousness. A correct interpretation of relevant precedent, however, does not support Doe’s arguments. As to Doe’s ⁵⁷⁵ substantive due process claim, 4 while there is no fundamental right to employment, the Court of Special Appeals has held that the Maryland internet database sex offender registry does not violate the right to privacy because a registrant’s photograph and criminal record are “ ‘already fully available to the public and [are] not constitutionally protected.’ ” Doe, 185 Md.App. at 645-47 , 971 A.2d at 987 -88 (citing Russell v. Gregoire, 124 F.3d 1079, 1093-94 (9th Cir.1997)).

Moreover, apart from his own testimony, Doe presented no evidence in the Circuit Court or in his brief to support his claims that he has been unable to find sustainable work or that he is suffering financially. Second, the U.S. Supreme Court’s decision in Connecticut Department of Public Safety v. Doe forecloses Doe’s argument that he is entitled to a hearing before being required to register. In Connecticut Department, the Court held that procedural due process did not entitle a sex offender to a hearing to determine dangerousness before being required to register because the offender’s present dangerousness was irrelevant to the statute’s registration requirement. 538 U.S. at 4, 123 S.Ct. at 1162-63, 155 L.Ed.2d at 102. The Court relied on the finding that conviction of a qualifying offense is the sole factor in determining whether an individual must register as a sex offender — individual dangerousness is irrelevant.

See id. at 5, 123 S.Ct. at 1163, 155 L.Ed.2d at 103-04. The Court of Special Appeals agreed with the Supreme Court’s reasoning in addressing the same issue under Maryland’s sex offender registration statute in Doe v. Department of Public Safety & Correctional Services, 185 Md.App. at 634-36 , 971 A.2d at 980-82 . Even if Doe was deprived of a protected interest, he does not have a due process right to a hearing because individual dangerousness is irrelevant to the registration requirement. ⁵⁷⁶ All is not lost, however. I am persuaded by Doe’s argument that, on this record, he is entitled to specific performance of the plea agreement in this case.

Doe and the State contend that the plea agreement’s silence as to sex offender registration supports their arguments. Determining the meaning of a sentencing term in a plea agreement requires strict adherence to the “four corners” of the plea agreement as established in the Maryland Rule 4-243 plea proceeding and to “due process concerns for fairness and adequacy of procedural safeguards.” Cuffley v. State, 416 Md. 568, 580-581 , 7 A.3d 557, 563-65 (2010) (quoting Solorzano, 397 Md. 661, 668 , 919 A.2d 652, 656 (2007)). 5 Extrinsic evidence is irrelevant to identify the agreement’s terms; rather, the terms are limited to what a reasonable lay person in the defendant’s position would have understood to be the terms of the plea agreement. Id. at 582-83, 7 A.3d at 563-65 . Any ambiguities in the record concerning the agreement’s terms are resolved in the defendant’s favor.

Id. at 583 , 7 A.3d at 566 . In the present case, the Maryland Rule 4-243 hearing record from 2006 does not indicate that sex offender registration was a term of Doe’s plea agreement. The plea agreement was limited to a five-year term, and it was only at the sentencing hearing that the judge ordered Doe to register as a sex offender. Assuming that a registration term would be included in an agreement at Doe’s 2006 plea hearing, a reasonable person in Doe’s position likely would understand that registering as a sex offender was not a part of the agreement.

See id. at 581-83 , 7 A.3d at 564-66 . The prosecutor’s testimony at the hearing in 2010 on the present declaratory judgment relief, as to what she and Doe’s attorneys discussed before the plea hearing, is irrelevant. See id. Furthermore, the policy arguments of good faith and efficiency of plea negotiations support using the Cuffley approach ⁵⁷⁷ in this case.

One primary concern to the majority in Cuffley was the potential risk that defendants would not understand the nature of the agreement before pleading guilty. 416 Md. at 583 , 7 A.3d at 566 . This risk may be present when plea terms to which a defendant agreed change retrospectively. Second, permitting retrospective application of the Maryland Act may discourage defendants to plead guilty, since defendants must have some reasonable assurance that the benefit promised in their plea agreements will not be withdrawn in the future, as the Amicus Brief argues here. This is significant in the state criminal justice system, where ninety-four percent of state convictions result from guilty pleas.

See Missouri v. Frye, -U.S. -, -, 132 S.Ct. 1399, 1407 , 182 L.Ed.2d 379, 389 (2012); see also State v. Brockman, 277 Md. 687, 693 , 357 A.2d 376, 380-81 (1976). Accordingly, I would reverse the judgment of the Court of Special Appeals, remand to that court with directions to reverse the judgment of the Circuit Court for Washington County and direct the Circuit Court to enter a declaratory judgment consistent with the views expressed here, including any further proceedings required to enforce specifically Doe’s plea agreement, which does not include him having to register as a sex offender as the result of the crime he committed in 1984. . In Smith , the Supreme Court considered the Alaska sex offender registration statute, which: (1) required registration with state or local law enforcement authorities; (2) publicized registration and non-confidential information on the Internet; and (3) applied retroactively to offenders who had been convicted before the law's enactment Smith, 538 U.S. 84, 90-91 , 123 S.Ct. 1140, 1145-46 , 155 L.Ed.2d 164, 174-76 (2003). In Young , the Court of Appeals considered whether the 2002 sex offender registration statute, then codified as Maryland Code Article 27, § 792 (now § 11-701 of the Criminal Procedure Article) was an additional penalty that required a jury trial to prove the actual conditions precedent to registration.

Young v. Maryland, 370 Md. 686, 690 , 806 A.2d 233, 235 (2002). . In his dissent, Justice Stevens advocated a different analytical approach to an ex post facto challenge: looking at the Act’s application and effect, he distinguished other cases in which the ex post facto challenge was rejected on the ground that, unlike other cases, "a criminal conviction under these [analogous] statutes provides both a sufficient and a necessary condition for the sanction.” Smith, 538 U.S. at 112 , 123 S.Ct. at 1157-5 , 155 L.Ed.2d at 189 (Stevens, J., dissenting) (emphasis in original). . The relevant factors include, but the analysis is not limited to: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has been regarded historically as punishment; (3) whether its operation will promote the traditional aims of punishment: retribution and deterrence; (4) whether the behavior to which it applies is a crime already; (5) whether the law has a scienter requirement; (6) whether it lacks an alternative purpose to which it may be connected rationally; and (7) if such an alternative does exist, whether the statute appears excessive in relation to the alternative. Mendoza-Martinez, 372 U.S. at 168-69 , 83 S.Ct. at 567-68 , 9 L.Ed.2d at 660-62 . .

In an unpublished opinion, the Court of Speeial Appeals declined to address Doe's substantive due process claim because he waived it by failing to raise the claim in his initial brief. . In Cuffley , the Court considered the legality of a defendant’s sentence that exceeded the incarceration guidelines, but suspended all but part of the sentence that fell within the guidelines, as agreed to in the defendant's plea agreement. 416 Md. at 577 , 7 A.3d at 562 . Concurring Opinion by McDONALD, J. which ADKINS, J., joins. I concur in the judgment of the Court.

However, I would not rest our decision on the new interpretation of Article 17 offered by the plurality opinion. 1 In my view, neither the ⁵⁷⁸ language nor the history of that provision, taken as a whole, offers a principled reason for differentiating its prohibition against ex post facto laws from the parallel prohibition in the federal Constitution. Rather, the cumulative effect of 2009 and 2010 amendments of the State’s sex offender registration law took that law across the line from civil regulation to an element of the punishment of offenders. See generally Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 Hastings L.J. 1071 , 1107-22 (2012); Corey Rayburn Yung, One of these Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions, 46 Harv. J. Leg is. 369, 386-400 (2009).

It was certainly within the General Assembly’s purview to make the registration law more onerous for offenders. In my view, however, in light of both Article 17 of the Declaration of Rights and Article I, § 10 of the federal Constitution, like other new laws affecting punishment for offenses, those amendments may not be applied retroactively. Judge ADKINS joins in this opinion. . This Court has repeatedly stated that Article 17 has "the same meaning” as the parallel federal constitutional provision, E.g., DPSCS v, Demby, 390 Md. 580, 609 , 890 A.2d 310 (2006).

The plurality opinion suggests that the Supreme Court deviated from the common understanding of the prohibition against ex post facto laws in 1990 when it decided Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990). Plurality Op. at p. 553, 62 A.3d at 133-34. However, this Court has relied on Collins on several occasions when analyzing ⁵⁷⁸ whether application of a particular State law violated that prohibition. E.g., Booth v. State, 327 Md. 142, 168-76 , 608 A.2d 162 (1992); Evans v. State, 382 Md. 248, 280-85 , 855 A.2d 291 (2004).

The past decisions of this Court led the author of a treatise on the Maryland Constitution to conclude that "[t]he Court of Appeals of Maryland considers the two provisions to have precisely the same meaning.” D. Friedman, The Maryland State Constitution (2006) at 25-26. . Although six judges would reverse the judgment of the Court of Special Appeals, they do not agree on the rationale for that outcome. With regard to the ex post facto claim in particular, five judges — Chief ⁵⁷⁹ Judge Bell and Judges Greene, Adkins, McDonald and Eldridge (retired, specially assigned) — agree that the current Maryland sex offender registration law is an ex post facto law. Yet only three — Chief Judge Bell, Judge Greene (author of the Plurality opinion) and Judge Eldridge — rest the decision on Article 17 and, in doing so, construe that Article more broadly than the federal Ex Post Facto Clause.

Dissenting Opinion by BARBERA, J. Respectfully, I dissent. For reasons I shall explain, I do not believe Petitioner is entitled to the relief he seeks under the federal'and state law grounds he asserts. I agree with Judge McDonald that the Plurality’s interpretation of Maryland’s ex post facto prohibition is unsupported by the language or history of Article 17 of the Maryland Declaration of Rights. 1 ⁵⁷⁹ Nor, for that matter, do I see a principled reason to depart in this case from the approach this Court has consistently taken in reading Article 17 in pari materia with the federal Ex Post Facto Clause. Unlike Judge McDonald, I agree with Judge Harrell that the 2009 and 2010 amendments to Maryland’s sex offender registration law survive under federal ex post Jacto law and, because I read the ex post facto clause of Article 17 in pari materia with the federal Ex Post Facto Clause, the 2009 and 2010 amendments to the law do not violate Article 17.

I write separately, though, to explain how I arrive at that result. I also agree with Judge Harrell that Maryland’s current sex offender registration law does not offend due process. Finally, I disagree with Judge Harrell’s application of Cuffley v. State, 416 Md. 568 , 7 A.3d 557 (2010), to this case and his ultimate conclusion that, because Petitioner’s plea agreement was silent as to sex offender registration, he cannot be compelled to comply with the law. I. This Court has traditionally construed Article 17 in pari materia, with the federal Ex Post Facto Clause and has declared repeatedly that the two clauses have the same meaning.

See, e.g., Sec’y, Dep’t of Public Safety and Corr. Servs. v. Demby, 390 Md. 580, 608 , 890 A.2d 310 (2006) (“We have held that the ex post fa,do clause in the Maryland Declaration of Rights has the same meaning as the federal clause.”); State v. Raines, 383 Md. 1, 26 , 857 A.2d 19 (2004) (same); Khalifa, v. State, 382 Md. 400, 425 , 855 A.2d 1175 (2004) (“The Ex Post Facto Clauses of the United States Constitution and Maryland Declaration of Rights have been viewed generally to have the ‘same meaning’ and are thus to be construed in pari materia.”)-, Evans v. State, 382 Md. 248 , 280 n. 13, 855 A.2d 291 ⁵⁸⁰ (2004) (same); Frost v. State, 336 Md. 125, 136 , 647 A.2d 106 (1994) (same); Anderson v. Dep’t of Health and Mental Hygiene, 310 Md. 217, 223 , 528 A.2d 904 (1987) (stating that the Maryland ex post facto clause “has been viewed as having the same meaning as the federal prohibition”). I would not depart from our well-established practice of examining the Maryland and federal ex post facto prohibitions under the same rubric, using federal jurisprudence as persuasive authority. See, e.g., Tichnell v. State, 287 Md. 695, 736 , 415 A.2d 830 (1980) (“Article 17 ... parallels the federal clause and the Supreme Court’s interpretation of the federal ex post facto clause is persuasive authority.” (citations omitted)).

As we have done previously, we should look to the principles set forth in the Supreme Court’s ex post facto cases for guidance in determining whether the sex offender registration provisions of current Maryland law violate the federal ex post facto prohibition and, thereby, also Article 17. Faithful application of those principles leads me to conclude that the General Assembly did not enact an ex post facto law by making retrospective the current sex offender registration scheme. The Ex Post Facto Clause of the federal Constitution, in relevant part, forbids “[ejvery law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Stogner v. California, 539 U.S. 607, 612 , 123 S.Ct. 2446 , 156 L.Ed.2d 544 (2003) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386 , 390, 1 L.Ed. 648 (1798)); see Evans, 382 Md. at 281 , 855 A.2d 291 (quoting same); see also Collins v. Youngblood, 497 U.S. 37, 43 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990) (“Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.”). It is well-settled that the ex post facto prohibition applies not to civil regulatory regimes but to criminal laws or laws that are punitive in intent or effects.

See Kansas v. Hendricks, 521 U.S. 346, 369-70 , 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997) (holding that a state’s civil commitment statute was nonpunitive and not a criminal proceeding, “thus remov[ing] an essential prerequisite for ... ex post facto claims”). Contrary to the Plurality’s view, it simply is not enough, for ex ⁵⁸¹ post facto purposes, that retroactive application of the 2009 and 2010 amendments to Maryland’s sex offender registration law “alters the situation of a party to his disadvantage.” See Doe v. Dep’t of Public Safety and Corr. Servs., 430 Md. 535, 559-60 , 62 A.3d 123, 137-38 (2013). The test the Plurality puts forward for detecting an ex post facto law is drawn largely from Anderson v. Department of Health and Mental Hygiene.

See Doe, 430 Md. at 553-54 , 62 A.3d at 133-34 ; see also id. at 556 , 62 A.3d at 135 (describing the test as follows: “[t]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective ... and it must disadvantage the offender affected by it.” (citations omitted)). There are two problems, as I see it, with employing in the present case the test used in Anderson . The Anderson Court, relying on Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1883), and its progeny, concluded that “a law passed after the commission of a criminal act, affecting substantial rights, and changing the consequences of having committed the criminal act in a way that is disadvantageous to the defendant, falls within the ex post facto prohibition.” Anderson, 310 Md. at 227 , 528 A.2d 904 . The Supreme Court, however, no longer embraces Kring’s expansive view of what is prohibited by the Ex Post Facto Clause.

In Collins v. Youngblood, the Court expressly overruled Kring , particularly the conclusion in that case that the Ex Post Facto Clause reaches “any change which ‘alters the situation of a party to his disadvantage.’ ” 2 497 U.S. at 50 , ⁵⁸² 110 S.Ct. 2715 ; see also Booth v. State, 327 Md. 142, 171 , 608 A.2d 162 (1992) (noting that Collins overruled Kring). Rather, the Supreme Court reaffirmed that the scope of the Ex Post Facto Clause is limited to the types of legislative acts set forth by Justice Chase in Calder v. Bull. Collins, 497 U.S. at 49-50 , 110 S.Ct. 2715 ; see also Stogner, 539 U.S. at 611-12 , 123 S.Ct. 2446 (recognizing that Calder v. Bull provides “an authoritative account of the scope of the Ex Post Facto Clause”). Those categories are: 1st.

Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Calder, 3 U.S. at 390 . Anderson , to the extent it relies on a now-discredited analysis and language that the Supreme Court abandoned two decades ago in Collins , should not guide the disposition of the present case. Neither am I persuaded, as the Plurality is, that the post- Collins cases of this Court demonstrate a lineage of ex post facto decisions that demands our adherence in the present case to the Kring/Anderson test, under principles of stare decisis. In not one of the post-Collins cases cited in the Plurality opinion did this Court declare that the ex post facto caselaw in Maryland no longer takes into account, much less applies, the federal ex post facto analysis.

Indeed, the Maryland ex post facto cases relied upon by the Plurality — Demby, Khalifa, Frost, Gluckstem, and Anderson — invoke in one way or another the notion that Article 17 and the Ex Post Facto Clause of the federal Constitution have essentially the same meaning. ⁵⁸³ I also dispute, for an entirely separate reason, the Plurality’s reliance on the Anderson test, which asks whether a retrospective “criminal or penal law” operates to “disadvantage” the offender. See Doe, 430 Md. at 556-59 , 62 A.3d at 135-37 . The present case requires us to examine for a possible ex post facto problem what on its face is a civil, regulatory regime. Unlike the case at bar, the laws at issue in the post-Collins cases relied upon by the Plurality unquestionably come within “[t]he ambit of punishment, for ex post facto purposes,” see Demby, 390 Md. at 610 , 890 A.2d 310 , as each one of those laws affected directly the length of an individual’s sentence for a crime.

See id. at 614-15 , 890 A.2d 310 (COMAR amendments that terminated eligibility of certain inmates to earn special project diminution credits for double-celling); Khalifa,, 382 Md. at 420 & n. 6, 855 A.2d 1175 (statutory amendments that increased the maximum sentence for abducting a child to a place outside the United States); Frost, 336 Md. at 137 , 647 A.2d 106 (statutory amendments which entitled the Parole Commissioner to rescind all diminution credits at a revocation hearing). See also Booth, 327 Md. at 168-69 , 608 A.2d 162 (statutory amendment that removed intoxication from the list of mitigating circumstances for the crime of first degree murder); Gluckstern v. Sutton, 319 Md. 634, 669 , 574 A.2d 898 (1990) (statutory amendments that, when combined, made parole more difficult to obtain for Sutton). The Plurality opinion fails to demonstrate that the changes to Maryland’s sex offender registration scheme are a “criminal or penal law,” which remains a threshold element of the test upon which the Plurality relies. This Court’s analysis should focus on whether the law at issue affects not mere “consequences” but rather the “definition of crimes, defenses, or punishments,” as that is the true concern of the ex post facto prohibition.

Collins, 497 U.S. at 51 , 110 S.Ct. 2715 . In other words, “Lajfter Collins , the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ ... but on whether any such change alters the definition of ⁵⁸⁴ criminal conduct or increases the penalty by which a crime is punishable.” Morales, 514 U.S. at 506-07 n. 3, 115 S.Ct. 1597 . Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003), provides the proper test for ascertaining whether a facially civil regulatory scheme is, in effect, criminal in the sense that it imposes “punishment,” as that term is understood in ex post facto analysis. That case, which involved an ex post facto challenge to Alaska’s Sex Offender Registration Act, also referred to as Alaska’s “Megan’s Law,” lays out a two-part inquiry: We must “ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 ( 117 S.Ct. 2072 , 138 L.Ed.2d 501 ] (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 [ 100 S.Ct. 2636 , 65 L.Ed.2d 742 ] (1980)). 538 U.S. at 92 , 123 S.Ct. 1140 (alteration in original). This Court has expressly relied on this same two-part, “intent-effects” test to reject a due process challenge to the earlier version 3 of Maryland’s sex offender registration law.

Young v. State, 370 Md. 686, 711-13, 716 , 806 A.2d 233 (2002) (holding that the obligation to register as a sex offender is “not punishment in the constitutional sense”). 4 Cf. Raines, 383 Md. ⁵⁸⁵ at 28, 42 , 857 A.2d 19 (applying the intent-effects test of Smith v. Doe and concluding that Maryland’s DNA Collection Act is not an ex post facto law). Logic dictates, and settled caselaw supports, employing the intent-effects test of Smith v. Doe to resolve the ex post facto challenge being raised in the present case. Under that test, the current sex offender registration and notification regime survives the challenge.

The first, “intent” prong of the Smith v. Doe test requires the courts to inquire “whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Id. at 93 , 123 S.Ct. 1140 (quoting Hudson v. United States, 522 U.S. 93, 99 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997)). This is a matter of statutory construction, involving consideration of “the statute’s text and its structure to determine the legislative objective.” Id. at 92, 123 S.Ct. 1140 . It is also relevant that, “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.’ ” Id. at 93-94 , 123 S.Ct. 1140 (quoting Flemming v. Nestor, 363 U.S. 603, 616 , 80 S.Ct. 1367 , 4 L.Ed.2d 1435 (1960)). Therefore, “even if the objective of [the law at issue] is consistent with the purposes of the [respective state’s] criminal justice system, the State’s pursuit of it in a regulatory scheme does not make the objective punitive.” Id. at 94, 123 S.Ct. 1140 .

In other words, “[t]he location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one.” Id. ⁵⁸⁶ For example, in Smith v. Doe, the Supreme Court explained that the Alaska legislature’s placement of the sex offender registration provisions in that state’s Code of Criminal Procedure, where other nonpunitive provisions also were placed, “is not sufficient to support a conclusion that the legislative intent was punitive.” Id. at 95 , 123 S.Ct. 1140 . The Court therefore held that Alaska’s sex offender registration and notification law did not violate the federal Ex Post Facto Clause because the primary purpose of the statute was not to impose punishment but rather to enact a civil regulatory scheme. Id. at 105-06 , 123 S.Ct. 1140 . If a reviewing court concludes that the legislative intent in enacting the scheme is nonpunitive, then the second, “effects” part of the Smith v. Doe test requires the court to determine whether, notwithstanding that the legislation is intended to be civil, its effects are so punitive that they negate its civil purpose.

The Supreme Court identified a number of “guideposts” to assist in answering that question with respect to a sex offender registration law: 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. Id. at 97 , 123 S.Ct. 1140 . Yet, “[b]eeause we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override