                                                                    FILED
                                                             United States Court of
                                 PUBLISH                         Appeals
                                                                 Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                                  May 18, 2016
                      FOR THE TENTH CIRCUIT                  Elisabeth A. Shumaker
                      _________________________________          Clerk of Court

JUSTON SHAW,

      Plaintiff - Appellant

v.                                                  No. 15-6106

ROBERT PATTON, in his official
capacity as Director of the
Oklahoma Department of
Corrections,

      Defendant - Appellee.
                     _________________________________

             Appeal from the United States District Court
                for the Western District of Oklahoma
                     (D.C. No. 5:14-CV-00124-W)
                     _________________________________

Brady R. Henderson (Ryan Kiesel, with him on the briefs), American Civil
Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, for
Plaintiff-Appellant.

Justin P. Grose, Assistant Attorney General, Oklahoma Attorney General’s
Office, Oklahoma City, Oklahoma, for Defendant-Appellee.
                        _________________________________

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     In 1998, Mr. Juston Shaw was convicted in Texas state court on a

charge of sexual assault. Roughly ten years later, he moved to Oklahoma.
When he did, his sexual-assault conviction triggered application of the

Oklahoma Sex Offenders Registration Act. Under this statute, Mr. Shaw

incurred an obligation, as long as he lived in Oklahoma, to

           regularly report to a local police department in Oklahoma,

           refrain from living within 2,000 feet of a school, playground,
            park, or child care center, and

           refrain from loitering within 500 feet of a school, playground,
            park, or child care center. 1

Okla. Stat. tit. 57, §§ 583(C)(3), 584, 590 (Supp. 2009); Okla. Stat. tit. 21,

§ 1125(A) (Supp. 2014).

      In Mr. Shaw’s view, these obligations constitute retroactive

punishment in violation of the U.S. Constitution’s Ex Post Facto Clause.

U.S. Const. art. I, § 10, cl. 1. 2 Thus, Mr. Shaw sued the Director of the

Oklahoma Department of Corrections, who is responsible for enforcing the

sex-offender regulations. 3 After a bench trial, the district court entered




1
      The loitering restrictions are subject to exceptions that do not apply
to Mr. Shaw’s circumstances. Okla. Stat. tit. 21, § 1125(C), (D) (Supp.
2014).
2
     Mr. Shaw also alleged violation of the Privileges and Immunities
Clause (U.S. Const. art. IV, § 2) and the Equal Protection Clause (U.S.
Const. amend. XIV, § 1). The district court dismissed both of these claims,
and Mr. Shaw does not address these claims in the appeal.
3
      Mr. Shaw also sued Mr. Bill Citty, Chief of the Oklahoma City
Police Department, but the parties stipulated to dismissal of all claims
against Mr. Citty.

                                       2
judgment against Mr. Shaw, holding that the statute’s retroactive

application did not amount to punishment.

      On appeal, we ask: Do Mr. Shaw’s restrictions on reporting,

residency, and loitering constitute retroactive punishment in violation of

the Ex Post Facto Clause? We conclude that these restrictions do not

constitute punishment. Thus, enforcement of these restrictions does not

violate the U.S. Constitution. 4

I.    The Oklahoma statute was enforced retroactively against Mr.
      Shaw.

      The defendant denies that the Oklahoma statute was enforced

retroactively, arguing that the statute was inapplicable to Mr. Shaw until

he entered Oklahoma. In our view, however, the statute was enforced

retroactively. 5

      It is true that Mr. Shaw was not subject to the Oklahoma statute until

he moved to Oklahoma, but the date of his move does not affect whether

4
      The defendant argues that the district court should not have allowed
introduction of a map at the trial. Appellee’s Resp. Br. at 23-26. But
because we affirm the district court’s judgment in favor of the defendant,
the map does not affect the outcome and we express no view on the map’s
admissibility.
5
      Mr. Shaw asserts that a cross-appeal was necessary for us to entertain
this argument. We disagree. A cross-appeal is necessary only if the
appellee asks us to alter the judgment. See Montgomery v. City of Ardmore,
365 F.3d 926, 944 (10th Cir. 2004). Here, the defendant is merely asking
us to affirm on alternative grounds. That request did not require a cross-
appeal. See United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633
F.3d 951, 958 (10th Cir. 2011).

                                     3
the statute is being enforced retroactively. A statute is enforced

retroactively if it governs conduct that preceded the statute’s enactment.

Stogner v. California, 539 U.S. 607, 612-13 (2003). That is the case here:

Mr. Shaw is subject to statutes enacted in 2009 and 2014 for conduct that

took place in 1998.

      In 1998, when Mr. Shaw was convicted, Oklahoma did not have any

residency or loitering restrictions for sex offenders. Oklahoma did require

reporting for sex offenders in 1998, but that requirement would already

have expired for Mr. Shaw. See Act of May 27, 1997, ch. 260 § 4, 1997

Okla. Sess. Laws 1423-24 (codified as amended at Okla. Stat. tit. 57,

§ 583(C) (Supp. 1997) (reporting requirement for ten years)); Act of May

20, 2003, ch. 223, 2003 Okla. Sess. Laws 948-49 (codified as amended at

Okla. Stat. tit. 57, § 590 (Supp. 2003) 6 (enacting residency restrictions)).

Thus, Mr. Shaw is subject to restrictions on reporting, residency, and

loitering only because Oklahoma changed its laws years after Mr. Shaw’s

criminal conduct. By definition, these restrictions are being retroactively

applied to Mr. Shaw. The resulting issue is whether these restrictions

constitute punishment.




6
       The sex-offender residency restrictions are now codified at Okla.
Stat. tit. 57, §§ 590-590.1.

                                       4
II.   We consider only the statutory provisions applicable to Mr.
      Shaw’s circumstances.

      Mr. Shaw challenges the application of Oklahoma’s sex-offender

requirements to his circumstances. Thus, we consider only the provisions

that affect Mr. Shaw. See Reno v. Flores, 507 U.S. 292, 300 (1993)

(explaining that an as-applied challenge is limited to review of how a

statute has been “applied in a particular instance”). Thus, we must

determine which of the challenged provisions were applied to Mr. Shaw’s

circumstances.

      Mr. Shaw challenges six statutory provisions applicable to sex

offenders. Three of the provisions (reporting, residency, and loitering)

affect him. But the other three provisions do not:

      1.   Sex offenders cannot provide services to children, work on
           school grounds, or work for a person who contracts for work to
           be performed on school grounds. Okla. Stat. tit. 57, § 589(A)
           (Supp. 2009).

      2.   Sex offenders generally cannot live with another convicted sex
           offender in a single dwelling (subject to certain exceptions).
           Okla. Stat. tit. 57, § 590.1(A) (Supp. 2009).

      3.   Aggravated or habitual sex offenders with an Oklahoma
           driver’s license must have the words “Sex Offender” appear on
           their driver’s licenses, and these offenders must renew their
           driver’s licenses every year. Okla. Stat. tit. 47, § 6-111(D)
           (Supp. 2009).

      First, Mr. Shaw did not present evidence of a restriction on his

employment opportunities, for he has not tried to work with children, work



                                      5
at a school, or work for a company that conducts business on school

grounds. 7

      Second, Mr. Shaw did not present evidence that the statute has

actually prevented him from living with another convicted sex offender.

Mr. Shaw lives with his common-law wife, and he has not presented any

information suggesting that his common-law wife is a convicted sex

offender.

      Third, the driver’s license requirements have not been applied to Mr.

Shaw because

            he has not obtained an Oklahoma driver’s license and

            he has not alleged or proven designation as an aggravated or
             habitual sex offender. 8

Because Mr. Shaw’s circumstances do not trigger these restrictions, we

need not decide whether they constitute punishment.




7
      Mr. Shaw suggests that the employment restriction “could prevent
him” from working in certain professions. Appellant’s Opening Br. at 26.
But Mr. Shaw has not shown that the employment restrictions actually
foreclosed his employment opportunities.
8
      The Director of the Department of Corrections is also an improper
defendant for a challenge to the driver’s license regulations. These
regulations are enforced by the Commissioner of Public Safety, not the
Director of the Department of Corrections. Okla. Stat. tit. 47, § 2-108(A)
(2011). Thus, Mr. Shaw’s alleged injury is not redressable by the Director
of the Department of Corrections. See Consumer Data Indus. Ass’n v. King,
678 F.3d 898, 905 (10th Cir. 2012).
                                      6
III.   The statutory restrictions on reporting and residency do not
       constitute punishment of Mr. Shaw.

       Mr. Shaw challenges the reporting and residency restrictions based

on the U.S. Constitution’s Ex Post Facto Clause. U.S. Const. art. I, § 10,

cl. 1. Because Mr. Shaw does not allege a punitive intent, we consider only

whether the statutory restrictions have a punitive effect. This inquiry is

guided by five factors; because each factor weighs against a finding of

punitive effect, we conclude that application of the reporting and residency

restrictions does not constitute punishment under the Ex Post Facto

Clause.

       A.   We engage in de novo review of the district court’s
            application of the intent-effects test.

       To determine whether Oklahoma’s sex-offender regulations served to

punish Mr. Shaw, we apply the intent-effects test discussed in Smith v.

Doe, 538 U.S. 84 (2003). Though the district court applied this test, we

engage in de novo review. Yes on Term Limits, Inc. v. Savage, 550 F.3d

1023, 1027 (10th Cir. 2008).

       In engaging in de novo review, we begin with the legislature’s stated

intent. If the legislature intended to impose punishment, our inquiry ends.

Smith, 538 U.S. at 92. But if the legislature expressed an intent to enact a

regulatory scheme that is civil or non-punitive, Mr. Shaw must provide the

“clearest proof” of a punitive effect. Id.



                                       7
      B.    Mr. Shaw does not argue that the legislature’s stated
            interest is punitive.

      We ordinarily start with the legislature’s stated intent. But Mr. Shaw

has not argued that the Oklahoma legislature’s stated intent is punitive. See

Appellant’s Opening Br. at 20 (“In the present case, Mr. Shaw has not

attempted to prove that [the Oklahoma statute’s] stated legislative

intention was punitive, due to ambivalent evidence.”). Thus, we express no

view on the Oklahoma legislature’s intent in enacting the sex-offender

requirements.

      C.    Mr. Shaw has not provided the “clearest proof” that the
            Oklahoma statute has a punitive effect.

      Instead, we consider whether Mr. Shaw has provided the clearest

proof of a punitive effect. For this inquiry, the Supreme Court considered

five factors in Smith v. Doe:

      1.    Do the statutory requirements resemble traditional forms
            of punishment?

      2.    Do the statutory requirements impose an affirmative
            disability or restraint that is considered punitive?

      3.    Do the statutory requirements promote the traditional
            aims of punishment?

      4.    Do the statutory requirements lack a rational connection
            to a non-punitive purpose?

      5.    Are the statutory requirements excessive with respect to
            the statute’s non-punitive purpose?




                                     8
Smith, 538 U.S. at 97 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144,

168-69 (1963)). 9 In our view, Mr. Shaw does not present the “clearest

proof” of a punitive effect from the reporting and residency restrictions.

     1.     We do not defer to the Oklahoma Supreme Court’s
            application of the five factors in Starkey v. Oklahoma
            Department of Corrections.

     The Oklahoma Supreme Court considered a similar ex post facto

challenge in Starkey v. Oklahoma Department of Corrections, 305 P.3d

1004 (Okla. 2013). There, a sex offender challenged other statutory

provisions, arguing that they violated the Oklahoma Constitution’s Ex Post

Facto Clause. Starkey, 305 P.3d at 1031. In addressing this challenge, the

Oklahoma Supreme Court used the five Smith factors as an analytical

framework and concluded that certain parts of the statute amounted to

retroactive punishment in violation of the state constitution. Id. Mr. Shaw

contends that the Oklahoma Supreme Court’s analysis under the Oklahoma

Constitution controls our analysis under the U.S. Constitution. We

disagree.




9
      In Kennedy v. Mendoza-Martinez, the Supreme Court identified two
additional factors bearing on whether a statute is punitive:

     1.     Does the statute come into play only on a finding of scienter?

     2.     Does the statute apply only to behavior that is already a crime?

372 U.S. 144, 168 (1963). But the parties have not addressed these factors.

                                      9
      Though we defer to state courts’ construction of state statutes, 10 Mr.

Shaw’s ex post facto challenge does not turn on statutory construction. The

parties do not disagree on the meaning of the reporting and residency

restrictions; they disagree only on whether these restrictions are punitive.

On this question, we do not defer to the Oklahoma Supreme Court. See

Lindsey v. Washington, 301 U.S. 397, 400 (1937) (stating that the U.S.

Supreme Court defers to the meaning ascribed to state statutes by a state’s

highest court, but the Supreme Court “will determine for itself” whether

that meaning violates the U.S. Constitution’s Ex Post Facto Clause).

      Deference to the state court would be particularly inappropriate here

because the Oklahoma Supreme Court evaluated the statute’s

constitutionality under the Oklahoma Constitution, not the U.S.

Constitution. Starkey v. Okla. Dep’t of Corrs., 305 P.3d 1004, 1030-31

(Okla. 2013). Indeed, the Oklahoma Supreme Court disavowed any

obligation to follow federal court precedents on the intent-effects test:

      Smith [v. Doe] dealt with an interpretation of the Federal
      Constitution’s prohibition on ex post facto laws. Although
      Oklahoma’s ex post facto clause is nearly identical to the
      Federal Constitution’s provisions we are not limited in our
      interpretation of Oklahoma’s constitution. How we apply the
      “intent-effects” test is not governed by how the federal courts
      have independently applied the same test under the United


10
      See Hebert v. Louisiana, 272 U.S. 312, 316 (1926) (“Whether state
statutes shall be construed one way or another is a state question, the final
decision of which rests with the courts of the state.”).

                                      10
       States Constitution as long as our interpretation is at least as
       protective as the federal interpretation.

Id. at 1021 (footnotes omitted). Unlike the Oklahoma Supreme Court, we

are not free to disavow our precedents on the intent-effects test. Thus, we

apply the five factors based on our precedents, rather than on the

Oklahoma Supreme Court’s analysis under the Oklahoma Constitution.

       2.     The reporting and residency restrictions do not resemble
              traditional forms of punishment.

       First, we consider whether the reporting and residency restrictions

resemble traditional forms of punishment. If the restrictions resemble

traditional forms of punishment, the first factor would suggest that the

statute’s effect is punitive. Smith, 538 U.S. at 97-98. In undertaking this

inquiry, we survey the historical uses of similar forms of punishment. See

id. at 97 (“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 . . . .”).

       Mr. Shaw contends that the reporting and residency restrictions

resemble banishment and probation, which he regards as two historical

forms of punishment. 11 Thus, we assess whether the reporting and


11
     Mr. Shaw also argues that he is being “shamed” by the disclosure of
personal information on the internet and appearance of the words “Sex
Offender” on driver’s licenses.

      First, Mr. Shaw argues that putting his personal information on the
internet and in a publicly available database amounts to shaming. But the
                                      11
residency restrictions are analogous to the historical uses of banishment

and probation. We conclude that the restrictions are not akin to these

historical forms of punishment. 12

      a.    Mr. Shaw’s reporting requirements do not resemble
            probation.

      Under the Oklahoma statute, Mr. Shaw must regularly report in

person to a local police department and provide detailed personal

information. Okla. Stat. tit. 57, § 584(A)(5) (Supp. 2009). According to

Mr. Shaw, this reporting requirement resembles the historical punishment

of probation. We disagree.




Supreme Court rejected this argument in Smith v. Doe. See Smith, 538 U.S.
at 99 (“The . . . principal effect of [placing sex offenders’ information on
the Internet] [is] to inform the public for its own safety, not to humiliate
the offender.”). Mr. Shaw does not argue that Oklahoma’s internet database
is materially different from the internet database at issue in Smith v. Doe.

      Second, Mr. Shaw argues that the Oklahoma statute’s provisions
involving driver’s licenses for sex offenders resemble shaming as an
historical form of punishment. As discussed above, these regulations have
not been applied to Mr. Shaw, for he does not have an Oklahoma driver’s
license and is not an aggravated or habitual sex offender. See Part II,
above. Because Mr. Shaw brings an as-applied challenge, we decline to
address this argument. See Part II, above.
12
      “The record before us contains nothing in the way of ethnological or
historical data and any reasoning based upon such matters must result from
taking judicial notice of the work of scholars which has been incorporated
in their writings.” Wadia v. United States, 101 F.2d 7, 7 (2d Cir. 1939); see
also Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013)
(“Judicial notice is properly taken of publicly available historical
articles.”).

                                     12
     The Supreme Court has characterized probation as a form of

punishment. United States v. Knights, 534 U.S. 112, 119 (2001).

Nonetheless, the Supreme Court rejected a similar theory with respect to

another state’s reporting requirements. Smith, 538 U.S. at 101-02 (rejecting

the argument that the restraint imposed by sex-offender reporting

requirements “is parallel to” the restraint imposed by probation). Mr. Shaw

argues that Oklahoma’s reporting requirements are more onerous than the

requirements addressed in Smith. But even if Mr. Shaw’s reporting

requirements are more onerous than the requirements at issue in Smith, his

requirements differ in three ways from the historical use of probation:

     1.    Probation historically concerned a probationer’s supervision;
           but Mr. Shaw’s reporting requirements require disclosure of
           personal information, not supervision.

     2.    Historically, probation included multiple conditions beyond
           regular reporting.

     3.    Probation historically operated as a deferred sentence for an
           underlying offense, but any violation of Mr. Shaw’s reporting
           requirements would entail a criminal prosecution distinct from
           his underlying offense.

     First, Mr. Shaw argues that his regular reporting amounts to

“supervision,” but he does not furnish evidence for this characterization.

Mr. Shaw must regularly provide his address and other personal

information to update Oklahoma’s sex-offender database. But no specific

officer with the Department of Corrections is assigned to consult with Mr.

Shaw or to supervise him.

                                     13
     Historically, a probation officer took a far more active role in a

probationer’s life than simply collecting information for a database. Thus,

when a probation officer does not actively supervise a probationer, the

subject is not “under probation,” as it was historically understood. See

Edwin H. Sutherland & Donald R. Cressey, Criminology 473 (8th ed. 1970)

(arguing that when a probation officer’s supervision is nonexistent, “the

system [should] not be called ‘probation’ and that, instead, it [should] be

called [simply a] suspended sentence”). The absence of supervision

distinguishes Mr. Shaw’s reporting requirements from the historical

understanding of probation.

     Second, probation historically included multiple conditions beyond

regular reporting to law enforcement. When probation was developed in the

nineteenth century, typical conditions required probationers to

          accept the first offer of “honorable employment,”

          obtain written consent from a probation officer if the
           probationer moved or changed jobs,

          report monthly to the probation office,

          conduct oneself “honestly” by “avoiding all evil
           associations,” obeying the law, and abstaining from drugs
           and alcohol, and

          decline to enter a saloon or any place where liquor is sold
           or given away.

Lawrence M. Friedman, Crime & Punishment in American History 408

(1993); see also David Garland, Punishment and Welfare: A History of

                                     14
Penal Strategies 25 (1985) (listing common early probation conditions that

included “detailed surveillance, control of associations, . . . interventions

in the offender’s family or home life, . . . personal influence or . . .

religious conversion”); 1 Neil P. Cohen, The Law of Probation and Parole

§ 7:8 (2d ed. 1999) (listing modern conditions of probation, including (1)

restricting access to weapons and alcohol, (2) limiting access to certain

places, and (3) requiring employment, financial support of family

members, participation in an educational or counseling program,

submission to regular searches, submission to a polygraph test, approval of

the probation officer before the defendant can move or travel, and regular

reporting to the probation office). 13 These common features of probation

are absent in the Oklahoma statute. See State v. Petersen-Beard, No.

108,061, ___ P.3d ___, slip op. at 17-18 (Kan. Apr. 22, 2016) (to be

published). 14


13
      Mr. Shaw’s residency restrictions are akin to some modern probation
requirements. See, e.g., Fla. Stat. § 948.30(1)(b) (2015) (supplying a
probation condition that prohibits certain sex offenders from living within
1,000 feet of a “school, child care facility, park, playground, or other place
where children regularly congregate”). But Mr. Shaw has not argued that
his residency restrictions resemble probation; instead, he analogizes the
residency restrictions to banishment. See Part III(C)(2)(b), below. As a
result, we decline to address whether the residency restrictions resemble
probation.
14
      In Petersen-Beard, the Kansas Supreme Court considered an Eighth
Amendment challenge to Kansas’s registration requirement for sex
offenders. Petersen-Beard, No. 108,061, slip op. at 1, 24. Kansas required
sex offenders to register in person four times a year for the rest of their
                                       15
      Third, Mr. Shaw’s reporting requirements are regulatory

requirements separate from his underlying sex-offense conviction. In

contrast, probation historically involved a “deferred sentence” based on the

underlying offense. See United States v. Johnson, 941 F.2d 1102, 1111

(10th Cir. 1991) (explaining that a period of probation may involve


lives. Id. at 3, 16. The defendant in Petersen-Beard challenged the
constitutionality of Kansas’ sex-offender registration requirements under
the Eighth Amendment to the U.S. Constitution, rather than the U.S.
Constitution’s Ex Post Facto Clause. Nonetheless, the court applied the
Smith factors and considered the constitutional tests for the Eighth
Amendment and the Ex Post Facto Clause identical with respect to whether
a state law is punitive. Id. at 6; see also Smith, 538 U.S. at 97 (explaining
that the factors to determine whether a statute constitutes punishment
“migrated into” the Court’s ex post facto jurisprudence, with “earlier
origins in cases under the Sixth and Eighth Amendments”). In applying the
Smith factors, the court rejected the challenger’s analogy of an in-person
registration requirement to probation:

      While probation/parole may have “reporting” in common in the
      abstract, this is only one aspect of many conditions attached to
      these punishments. For example, probationers are subject to
      searches of their persons and property simply on reasonable
      suspicion of a probation violation or criminal activity and are
      subject to random drug tests. They may also be required to
      avoid “injurious or vicious habits” and “persons or places of
      disreputable or harmful character”; permit state agents to visit
      their homes; remain in Kansas unless given permission to
      leave; work “faithfully at suitable employment”; perform
      community service; go on house arrest; and even serve time in
      a county jail.

Id., slip op. at 17-18 (quoting and adopting Doe v. Thompson, No. 110,318,
___ P.3d ___, slip op. at 59 (Kan. Apr. 22, 2016) (to be published) (Biles, J.,
concurring in part and dissenting in part) (quoting Kan. Stat. Ann. § 21-
6607(b), (c)). Noting that Kansas’s sex-offender statute required
registration but none of the other features of probation, the court rejected
the challenger’s analogy to probation. Id. at 18.

                                      16
deferral of a sentence for a specified time-period); see also Richard Gray,

Probation: An Exploration in Meaning, Fed. Probation, Dec. 1986, at 26,

28 (analogizing probation to “conditional discharge” or “pretrial

diversion”). Thus, if probationers violate conditions, they ordinarily face

revocation of their probation and imprisonment for the underlying offense.

See Black v. Romano, 471 U.S. 606, 610-11 (1985). In contrast, if a sex

offender violates a reporting requirement, “any prosecution [for the

violation] is a proceeding separate from the . . . original offense.” Smith,

538 U.S. at 102.

      In our view, the reporting requirements differ from probation as it

has been historically understood.

      b.    Mr. Shaw’s residency restrictions do not resemble
            banishment.

      The Oklahoma statute restricts Mr. Shaw from living in certain areas.

According to Mr. Shaw, these restrictions amount to banishment because

they prevent him from living in “whole neighborhoods.” Appellant’s

Opening Br. at 23; see also Smith, 538 U.S. at 98 (classifying banishment

as an historical form of punishment). We disagree because Mr. Shaw’s

residency restrictions differ in two ways from the historical punishment of

banishment:

      1.    Banishment involved the complete expulsion of an offender
            from a socio-political community.



                                      17
      2.    Banishment prohibited an offender from even being present in
            the jurisdiction.

      Under historic common law, banishment resembled deportation,

taking the form of “expulsion, or deportation by the political authority on

the ground of expediency; punishment by forced exile, either for years or

for life; a punishment inflicted upon criminals, by compelling them to quit

a city, place or country, for a specified period of time.” Beth Caldwell,

Banished for Life: Deportation of Juvenile Offenders as Cruel & Unusual

Punishment, 34 Cardozo L. Rev. 2261, 2302 (2013) (quoting Katherine

Beckett & Steven Herbert, Banished: The New Social Control in Urban

America 10 n.28 (2009)). Thus, societies have typically regarded

banishment as a sanction designed to remove an individual from a specific

geographic area. See Wm. Garth Snider, Banishment: The History of Its

Use and a Proposal for Its Abolition Under the First Amendment, 24 New

Eng. J. on Crim. & Civ. Confinement 455, 476 (1998).

      The geographic scope of banishment has evolved with the evolution

of socio-political units. In its earliest forms, banished individuals were

exiled from a single city or city-state. See The Oldest Code of Laws in the

World: The Code of Laws Promulgated by Hammurabi, King of Babylon,

B.C. 2285-2242 31 (C.H.W. Johns trans., 2000) (banishment under the

Hammurabi Code); Israel Drapkin, Crime & Punishment in the Ancient

World 77 (1989) (banishment under ancient Hebrew law); id. at 178


                                      18
(banishment in Ancient Greece); see also Corey Rayburn Yung,

Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders,

85 Wash. U.L. Rev. 101, 107 (2007) (“Banishment in its early form was the

expulsion of a person from a community or sovereign area.”).

      As societies expanded geographically, banished individuals were

exiled to far-flung colonies or isolated localities. See A. Roger Ekirch,

Bound for America: The Transportation of British Convicts to the

Colonies, 1718-1775, 17-21 (1987) (banishment under the British Empire

from England to the American colonies); Exile, in 24 Great Soviet

Encyclopedia 92 (A.M. Prokhorov ed., 1980) (banishment in Russia to

distant localities and banishment in France to the French colonies in South

America and the South Pacific). And in the American colonies, banished

individuals were exiled from entire colonies. See Thomas G. Blomberg &

Karol Lucken, American Penology: A History of Control 19-20 (2d ed.

2010).

      Twentieth-century examples of banishment in American courts have

also ordinarily involved complete expulsion from a geographic area, such

as a town, 15 a county, 16 or a state. 17


15
      Ex parte Scarborough, 173 P.2d 825, 826 (Cal. Dist. Ct. App. 1946).
16
      Beavers v. State, 666 So. 2d 868, 872 (Ala. Crim. App. 1995).
17
     State v. Collett, 208 S.E.2d 472, 473 (Ga. 1974); People v. Baum,
231 N.W. 95, 96 (Mich. 1930).
                                            19
       The common feature of banishment, throughout the ages, has been

the complete expulsion of an offender from a community. See Lawrence M.

Friedman, Crime & Punishment in American History 40 (1993) (referring

to the historical use of banishment as intending to exclude an offender

“from the community altogether”); see also United States v. Ju Toy, 198

U.S. 253, 269-70 (1905) (Brewer, J., dissenting) (describing banishment as

the quitting of “a city, place, or country, for a specific period of time, or

for life”). 18

       Mr. Shaw has not been expelled from an entire community; he claims

only that “vast spaces” have been “declared off limits.” Appellant’s

Opening Br. at 23. His inability to inhabit these areas might substantially

affect his residential choices, but this impediment—regardless of its

severity—does not constitute expulsion from a community. See Doe v.

Miller, 405 F.3d 700, 719 (8th Cir. 2005) (concluding that a statute

restricting residential areas for sex offenders does not constitute

banishment because sex offenders are not expelled from their communities

or prohibited from accessing facilities for employment or for any purpose

other than establishing a residence).


18
     Though Justice Brewer’s dissent lacks “value as precedent,” it is “the
most significant [statement] by the [Supreme] Court on the issue of
banishment as punishment.” Corey Rayburn Yung, Banishment by a
Thousand Laws: Residency Restrictions on Sex Offenders, 85 Wash. U.L.
Rev. 101, 115-16 (2007).

                                        20
      The residency provisions not only lacked an element of expulsion,

but also allowed offenders to conduct activities in the restricted areas.

Banishment was different, prohibiting offenders from even being present in

the restricted area. See, e.g., J.M. Beattie, Crime & the Courts in England,

1660-1800 503-04 (1986) (stating that a return to England after banishment

would constitute a capital offense); Thomas G. Blomberg & Karol Lucken,

American Penology: A History of Control 19-20 (2d ed. 2010) (same in the

American colonies); Israel Drapkin, Crime and Punishment in the Ancient

World 194 (1989) (same in Ancient Greece).

      In our view, the residency restrictions do not resemble the historical

use of banishment. Mr. Shaw has not been expelled from a community, and

he is free to go wherever he wishes in Oklahoma even if he cannot live in

some areas.

      3.      The statute does not impose an affirmative disability or
              restraint that is considered punitive.

      Second, we consider whether the statute imposes an affirmative

disability or restraint that is considered punitive. In our view, the statute

does not.

      a.      Mr. Shaw’s reporting requirements are not sufficiently
              harsh to constitute an affirmative disability or restraint that
              is considered punitive.

      Mr. Shaw owns a house that is within 2,000 feet of a school,

playground, park, or child care center. As a result, Mr. Shaw cannot reside


                                      21
in his own house and must report weekly to law enforcement as a transient.

Okla. Stat. tit. 57, §§ 584(E), 590(A) (Supp. 2009). Even if Mr. Shaw were

not a transient, however, he would have to report in person every three

months as long as he resides in Oklahoma. Okla. Stat. tit. 57, §§ 583(A),

584(A)(5) (Supp. 2009). These in-person reporting requirements are

burdensome; but under our precedents, the burden is not so harsh that it

constitutes punishment. 19

      Mr. Shaw points out that Oklahoma’s reporting requirements are

more burdensome than the reporting requirements found to be non-punitive

in Smith v. Doe, for Mr. Shaw must report to his local police department

            in person, rather than by mail, and

            more frequently than the sex offender in Smith.

But the additional burden does not render Mr. Shaw’s requirements

punitive in effect. 20


19
      The district court did not address whether the reporting requirements
constitute an affirmative disability or restraint that is considered punitive.
But we can affirm the district court’s ruling on any ground adequately
supported in the record. Harvey v. United States, 685 F.3d 939, 950 n.5
(10th Cir. 2012).
20
      Mr. Shaw committed the sex offense in Texas in 1998. See p. 1,
above. At that time, Texas law required transient sex offenders (like Mr.
Shaw) to report in person every week. See 1997 Tex. Sess. Law Serv. Ch.
668 (S.B. 875) (Vernon’s). Thus, in the absence of any statutory changes
after 1998, Mr. Shaw would have had to comply with this weekly reporting
requirement if he had remained in Texas and lacked a regular address. See
Tyson v. State, __ N.E.3d __, 2016 WL 756366, at *1, *7 (Ind. Feb. 25,
2016) (to be published) (rejecting an ex post facto challenge, based on
                                      22
      Other circuits have ordinarily held that in-person reporting

requirements are not considered punitive. See United States v. Parks, 698

F.3d 1, 6 (1st Cir. 2012) (concluding that in-person reporting is

inconvenient but not enough to constitute punishment); Doe v. Cuomo, 755

F.3d 105, 112 (2d Cir. 2014) (holding that a requirement of quarterly in-

person reporting is not punitive); United States v. Under Seal, 709 F.3d

257, 265 (4th Cir. 2013) (“Although [a sex offender] is required under [the

Sex Offender Registration and Notification Act] to appear periodically in

person to verify his information and submit to a photograph, this is not an

affirmative disability or restraint.” (citation omitted)); Hatton v. Bonner,

356 F.3d 955, 964 (9th Cir. 2003) (stating that a California statute’s

requirement of in-person reporting “is simply not enough to turn [the

California statute] into an affirmative disability or restraint”); United

States v. W.B.H., 664 F.3d 848, 855, 857-58 (11th Cir. 2011) (concluding

that a requirement of frequent, in-person reporting is “not enough” to

change a statutory regime from civil and regulatory to criminal and

punitive).

      Our circuit has not squarely addressed this question, but we

implicitly adopted this view in United States v. Hinckley, 550 F.3d 926



changes in Indiana’s sex-offender reporting law, because the offender had
committed a sex offense in Texas in 2002 and would have had reporting
obligations if he had remained in Texas).

                                      23
(10th Cir. 2008), abrogated on other grounds by Reynolds v. United States,

__ U.S. __, 132 S. Ct. 975 (2012). There, the claimant brought an ex post

facto challenge to a federal statute requiring in-person reporting for sex

offenders. Hinckley, 550 F.3d at 927, 935. The claimant argued that Smith

v. Doe was distinguishable because the challenged federal statute required

in-person reporting, and the Alaska statute at issue in Smith v. Doe did not.

Id. at 936-37. We rejected the claimant’s argument and concluded that the

federal statute’s increased burden did not render the statute punitive. Id. at

938. Hinckley suggests that Mr. Shaw’s in-person reporting requirement

does not constitute an affirmative disability or restraint that is considered

punitive.

      We are also guided by precedents addressing other harsh conditions

that the Supreme Court has not regarded as punitive. For example, the

Supreme Court has held that a lifelong bar on work in a particular industry

does not constitute an affirmative disability or restraint that is considered

punitive. See, e.g., Hudson v. United States, 522 U.S. 93, 104 (1997)

(restricting participation in the banking industry); De Veau v. Braisted,

363 U.S. 144, 160 (1960) (prohibiting work as a union official); Hawker v.

New York, 170 U.S. 189, 192-94 (1898) (revocation of a medical license).

      A lifelong bar on work in an industry is harsher than Mr. Shaw’s

reporting requirements. See Doe v. Cuomo, 755 F.3d 105, 112 (2d Cir.

2014) (stating that a requirement for sex offenders to report in person

                                      24
every three years is far less burdensome than a loss of livelihood, which

the Supreme Court has upheld against ex post facto challenges); Am. Civil

Liberties Union of Nev. v. Masto, 670 F.3d 1046, 1056-57 (9th Cir. 2012)

(providing that a state law requiring quarterly fingerprinting and in-person

reporting does not constitute an affirmative disability or restraint because

“the burden remains less onerous than occupational debarment”). 21

      Guided by Hinckley, the opinions in other circuits addressing in-

person reporting requirements, and Supreme Court precedent addressing

harsher restrictions, we conclude that Mr. Shaw’s in-person reporting

requirements do not constitute an affirmative disability or restraint that is

considered punitive.




21
       We note that the Department of Corrections does not monitor Mr.
Shaw’s whereabouts beyond the requirement of in-person reporting. But
courts have held that even continuous monitoring of a sex offender’s
whereabouts is not sufficiently disabling to be considered punitive. See,
e.g., Belleau v. Wall, 811 F.3d 929, 937 (7th Cir. 2016) (“Having to wear
[a GPS] monitor is a bother, an inconvenience, an annoyance, but no more
is punishment than being stopped by a police officer on the highway and
asked to show your driver’s license is punishment, or being placed on a sex
offender registry.”); Doe v. Bredesen, 507 F.3d 998, 1005 (6th Cir. 2007)
(holding that wearing a GPS monitoring device is not a substantial
disability, relying in part on the Supreme Court’s occupational debarment
cases); State v. Bowditch, 700 S.E.2d 1, 10-11 (N.C. 2010) (explaining that
because the GPS monitoring program did not “detain an offender in any
significant way,” the program was not punitive even though it also required
an offender to allow government officials into the offender’s home every
90 days).

                                      25
      b.    Mr. Shaw’s residency requirements are not sufficiently
            harsh to constitute an affirmative disability or restraint that
            is considered punitive.

      Mr. Shaw cannot live within 2,000 feet of a school, playground, park,

or child care center. Okla. Stat. tit. 57, § 590(A) (Supp. 2009). Thus,

before Mr. Shaw can move, he must verify that his prospective residence is

more than 2,000 feet from a school, playground, park, or child care center.

This requirement does not constitute an affirmative disability or restraint

that is considered punitive.

      In Smith, the U.S. Supreme Court acknowledged that another state’s

residency requirements created a burden, but not one sufficiently onerous

to be considered punitive. Smith, 538 U.S. at 100-101. Mr. Shaw points out

that his residency restrictions are more burdensome than the Smith

restrictions because the Oklahoma statute

           does not leave Mr. Shaw completely “free to change . . .
            residences” and

           effectively requires Mr. Shaw to verify that a new address
            complies with the statute before he can move.

Id. But the additional burdens imposed by Mr. Shaw’s residency

restrictions do not amount to a disability or restraint that has a punitive

effect. See Doe v. Miller, 405 F.3d 700, 721 (8th Cir. 2005) (concluding

that a residency restriction imposes an element of affirmative disability or

restraint, but not necessarily one that is punitive).



                                      26
       In upholding the constitutionality of another state statute, the U.S.

Supreme Court reasoned that the statutory restrictions were less harsh than

occupational debarment, which is considered nonpunitive. Smith, 538 U.S.

at 100. The same is true of Oklahoma’s residency restrictions. Mr. Shaw

might need to consult with Oklahoma law enforcement before changing his

residence within Oklahoma, but this inconvenience is surely preferable to a

ban on working in a particular field.

       Mr. Shaw’s residency restrictions are also less disabling than other

state laws that require sex offenders to relocate if they live in an area that

had been compliant but became non-compliant because of an intervening

opening of a nearby school, playground, park, or child care center. In these

states, sex offenders face a constant threat of relocation. See, e.g.,

Commonwealth v. Baker, 295 S.W.3d 437, 445 (Ky. 2009) (discussing

collateral consequences of the residency restrictions and how sex offenders

faced a “constant threat of eviction”); State v. Pollard, 908 N.E.2d 1145,

1150 (Ind. 2009) (finding that a “substantial housing disadvantage” exists

for sex offenders who have “no way . . . to find . . . permanent home[s]”).

Mr. Shaw does not face a similar threat of relocation under the Oklahoma

statute. 22


22
      The Oklahoma statute includes a relocation exception for new day
care centers or parks. Thus, sex offenders need not relocate if a new day
care center or park is built nearby. Okla. Stat. tit. 57, § 590(A) (Supp.
2009).
                                        27
         In our view, Oklahoma’s residency restrictions are not sufficiently

harsh to constitute an affirmative disability or restraint that has a punitive

effect.

         4.   The Oklahoma statute does not promote the traditional aims
              of punishment.

         Third, we consider whether the Oklahoma statute promotes the

traditional aims of punishment—deterrence and retribution. Smith, 538

U.S. at 102. In our view, the Oklahoma statute does not promote these

punitive goals more than non-punitive goals.

         a.   The Oklahoma statute does not bear a sufficiently strong
              deterrent effect to make the restrictions punitive.

         We may safely assume that Mr. Shaw is correct when he alleges that

reporting and residency restrictions deter sex offenses. But Mr. Shaw

concedes that the deterrent effect is “less probative” than the other factors

used to determine whether the statute is punitive. Appellant’s Opening Br.

at 27.

         Deterrence is not unique to punishment, for any civil regulation

likely has some deterrent effect. See Smith, 538 U.S. at 102 (“Any number



      The Oklahoma statute does not provide a relocation exception for
new schools. Thus, sex offenders must relocate if a new school is built
nearby. Id. But Mr. Shaw has not presented evidence that this restriction
has been applied to his circumstances, for he has never had to move
because a new school was built within 2,000 feet of his residence.
Accordingly, we need not decide whether the lack of a relocation exception
for schools is so harsh that it constitutes an affirmative disability or
restraint that is considered punitive. See Part II, above.
                                        28
of governmental programs might deter crime without imposing

punishment.”). And Mr. Shaw has not shown that the statute’s deterrent

effect is sufficiently strong to negate the legislature’s non-punitive intent.

See United States v. W.B.H., 664 F.3d 848, 858 (11th Cir. 2011)

(concluding that a sex offender’s reporting requirements lack a sufficiently

strong deterrent effect to justify a finding that the requirements are

punitive); Doe v. Bredesen, 507 F.3d 998, 1005-06 (6th Cir. 2007) (stating

that although the sex-offender reporting requirements had some deterrent

effect, the strength of the effect was not enough to make the statute

punitive); Doe v. Miller, 405 F.3d 700, 720 (8th Cir. 2005) (concluding

that residency restrictions lack a strong deterrent effect because they do

not alter a sex offender’s “incentive structure”); Hatton v. Bonner, 356

F.3d 955, 965 (9th Cir. 2003) (stating that the deterrent value of sex-

offender reporting statutes does not make the statutes punitive). Thus, the

reporting and residency restrictions lack a sufficiently strong deterrent

effect to render the Oklahoma statute punitive.

      b.    The statute lacks a sufficiently strong retributive effect to
            render the statute punitive.

      A statute is retributive if it is intended to express condemnation for a

crime and to restore moral balance. Graham v. Florida, 560 U.S. 48, 71

(2010). Mr. Shaw’s reporting and residency restrictions may reflect




                                      29
societal condemnation. But this expression of condemnation is not

sufficiently clear or strong to negate the legislature’s non-punitive intent.

      Mr. Shaw regards his reporting and residency restrictions as

retributive because they are applied categorically without regard for his

individualized risk to the public. We disagree: the reporting and residency

restrictions are consistent with the non-punitive objective of promoting

public safety, and Mr. Shaw has not shown that the retributive effect is so

strong that it renders the statute punitive.

       i.   Mr. Shaw’s reporting requirements are consistent with the
            legislature’s non-punitive objective of protecting public
            safety.

      For a statute to be so retributive that it constitutes punishment, Mr.

Shaw must show that the statute’s effect lacks a reasonable relationship to

non-punitive objectives. Smith, 538 U.S. at 102.

      Mr. Shaw’s reporting requirements might have a retributive effect of

“vengeance” or “realizing ‘justice.’” Artway v. Attorney Gen. of State of

N.J., 81 F.3d 1235, 1255 (3d Cir. 1996). But the reporting requirements are

also consistent with a non-punitive intent—promoting public safety—by

facilitating law enforcement’s identification of sex offenders and

notification to the public of potential dangers.

      Mr. Shaw’s reporting requirements are long (as long as he continues

to reside in Oklahoma) and frequent (weekly) because



                                      30
           the Department of Corrections determined that Mr. Shaw’s
            sexual-assault conviction was particularly serious and

           Mr. Shaw is a transient.

The Oklahoma legislature could rationally view the seriousness of Mr.

Shaw’s offense and his transience as calling for heightened efforts to

promote public safety. Thus, Mr. Shaw’s long, frequent reporting

requirements are “consistent with the [statute’s non-punitive] objective.”

Smith, 538 U.S. at 102.

      First, Mr. Shaw’s reporting requirements were keyed to the

seriousness of his underlying sex-offense conviction. The Alaska reporting

requirements addressed in Smith were also based on a sex offender’s risk

of re-offense. Id. at 90 (requiring multiple-conviction sex offenders to

report more frequently and for a longer period of time than single-

conviction sex offenders). Though the Oklahoma and Alaska statutes use

different methods to determine the severity of an offender’s reporting

requirements, both statutes linked the severity of the reporting

requirements to public safety, making the statutes “consistent with the

regulatory objective” of protecting public safety. Id. at 102; see also

Hatton v. Bonner, 356 F.3d 955, 965 (9th Cir. 2003) (concluding that a

reporting statute lacked retributive effect when it “tied the length of the

reporting requirement to the extent of the [offender’s] wrongdoing”).




                                       31
      Second, Mr. Shaw is a transient, and the Oklahoma legislature could

rationally determine that transient sex offenders pose a greater threat to

public safety. See, e.g., Rodriguez v. State, 108 A.3d 438, 447-48 (Md. Ct.

Spec. App. 2015) (concluding that the Maryland legislature “had a

legitimate regulatory purpose in enacting additional registration

requirements for homeless [sex offenders] [because] [w]ithout frequent in-

person registration, law enforcement would be unable to properly monitor

these [offenders]”); Lamberty v. State, No. 232, 2014, 2015 WL 428581, at

*3 (Del. Jan. 30, 2015) (unpublished) (“Requiring a homeless sex offender

to register more often assists police in their supervision, and directly

contributes to the [statute’s] stated purpose of continued monitoring of sex

offenders for the public’s protection.”); State v. Crofton, No. 59539-3-I,

2008 WL 2231821, at *2 (Wash. Ct. App. June 2, 2008) (unpublished)

(noting that weekly, in-person reporting requirements for homeless sex

offenders may be enacted to “protect communities by providing increased

access to necessary and relevant information”); see also Part III(C)(6)(b),

below (discussing the regulation of transient sex offenders). In light of

this consideration, Mr. Shaw’s weekly reporting requirement does not

render the statute punitive.

      In our view, Mr. Shaw’s reporting requirements were rationally

designed to promote public safety. Mr. Shaw has not demonstrated a clear



                                      32
retributive effect from his weekly reporting requirements that negates the

legislature’s non-punitive intent.

       ii.   Mr. Shaw’s residency restrictions are also consistent with
             the legislature’s non-punitive objective of protecting public
             safety.

      Mr. Shaw’s residency restrictions are also consistent with a non-

punitive objective: reducing recidivism among sex offenders. As discussed

below, the Oklahoma legislature could reasonably set out to reduce

recidivism by minimizing temptations and opportunities for sex offenders

to prey on children. See Part III(C)(5)(b), below. In light of the rational

connection between the residency restrictions and a reduction in

recidivism, this factor also weighs against a finding of a punitive effect.

See Smith, 538 U.S. at 102 (concluding that a restriction that is

“reasonably related to the danger of recidivism” is not considered

retributive).

      5.     The Oklahoma statute is rationally related to a non-punitive
             purpose.

      Fourth, we examine the statute’s “rational connection to a non-

punitive purpose.” Id. This is the “[m]ost significant factor” in considering

the statute’s punitive effect. Id.

      The Oklahoma legislature enacted the statute to “protect[] the public

safety” by reducing recidivism among sex offenders, improving law

enforcement’s ability to identify sex offenders, and enabling law


                                      33
enforcement to alert the public to potential danger from these offenders.

Starkey v. Okla. Dep’t of Corrs., 305 P.3d 1004, 1020 (Okla. 2013)

(quoting 1997 Okla. Sess. Laws 1422); see id. at 1028 (discussing the

statute’s non-punitive objective of promoting public safety). The reporting

and residency restrictions are rationally related to these non-punitive

purposes.

      a.    The reporting requirements promote public safety.

      The federal district court concluded that the reporting requirements

further the legislature’s interest in protecting public safety. Dist. Ct. Op. at

21. We agree. See United States v. Under Seal, 709 F.3d 257, 265 (4th Cir.

2013) (concluding that notifying the public about the risk of sex offenders

in the community is rationally tied to public safety).

      Mr. Shaw does not present any arguments to rebut the relationship

between the reporting requirements and public safety. To the contrary, Mr.

Shaw points to one detective’s testimony, who explained that the reporting

requirements are “helpful in investigating sex crimes.” Appellant’s

Opening Br. at 30.

      The reporting requirements are rationally related to a non-punitive

purpose, which weighs against a finding of a punitive effect.




                                      34
      b.    The residency restrictions are rationally related to a
            concern for public safety.

      The federal district court also concluded that the residency

restrictions are rationally related to the Oklahoma legislature’s concern for

public safety. Dist. Ct. Op. at 21. We agree.

      Mr. Shaw argues that the restrictions are not tied to public safety

because the restrictions

           do not provide additional information for sex-crime
            investigations and

           increase the rate of homelessness among sex offenders.

We reject both arguments.

      First, the residency restrictions need not facilitate sex-crime

investigations in order to be tied to a non-punitive purpose. Instead, the

residency restrictions are rationally designed to reduce sex offenders’

temptations and opportunities to re-offend. See Doe v. Miller, 405 F.3d

700, 716, 720 (8th Cir. 2005) (holding that a 2,000-foot residency

restriction is rationally designed to reduce recidivism by reducing

temptation for sex offenders); State v. Pollard, 908 N.E.2d 1145, 1152

(Ind. 2009) (stating that residency restrictions for sex offenders will

“reduce the likelihood of future crimes by depriving the offender[s] of the

opportunity to commit those crimes”); see also Cynthia Calkins, Elizabeth

Jeglic, et al., Sexual Violence Legislation: A Review of Case Law and

Empirical Research, 20 Psychol. Pub. Pol’y & L. 443, 453-54 (2014)

                                      35
(stating that legislatures enact residency restrictions to prevent sex

offenders from being “near places where children congregate” or “residing

within specific distances of child-dense community structures” in an

attempt to reduce sex offenders’ recidivism rates); Corey Rayburn Yung,

Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders,

85 Wash. U.L. Rev. 101, 154 (2007). 23

      The Oklahoma legislature’s apparent strategy was to keep sex

offenders at least 2,000 feet away from large groups of children. “State

statutes that impose 2000-foot residency restrictions bear at least some

resemblance in their relationship to the interest that the legislation hopes

to serve. These restrictions place children out of sight and mind, beyond

23
      Professor Yung discusses the rationales ordinarily given for
residency restrictions:

      The most common rationale offered in support of [residency
      restrictions] is that they prevent the temptation of sex offenders
      in their daily lives. The temptation argument is that sex
      offenders will not be around children, therefore they will not
      be tempted to commit a sex offense against them. A secondary,
      and probably more powerful, argument is that the presence of
      sex offenders in communities creates opportunities for those
      offenders to form linkages with potential victims, enabling
      their future crimes. This second argument is more potent
      because it acknowledges the overwhelming statistical evidence
      that child molesters are most often friends or family members
      of the victims.

Corey Rayburn Yung, Banishment by a Thousand Laws: Residency
Restrictions on Sex Offenders, 85 Wash. U.L. Rev. 101, 154 (2007).
Professor Yung disputes these rationales based on empirical data. Id. at
154-56. But Mr. Shaw did not present any such empirical data.

                                      36
senses that could stir the perversions of known child sex offenders. At

least arguably, a 2000-foot restriction reduces opportunity, diminishes

temptation, and thereby decreases the risk that a proven child sex offender

will reoffend.” People v. Leroy, 828 N.E.2d 769, 792 (Ill. Ct. App. 2005)

(Kuehn, J., dissenting). At trial, Mr. Shaw did not present any evidence

questioning the reasonableness of the Oklahoma legislature’s strategy to

reduce sex offenders’ temptations and opportunities through residency

restrictions.

      Second, Mr. Shaw argues that the residency restrictions increase

homelessness among sex offenders. In his view, he was made homeless by

the Oklahoma statute. We disagree. Mr. Shaw is a transient because he

failed to verify that his residence complied with the Oklahoma statute’s

residency restrictions. 24

      In our view, the residency restrictions are rationally related to the

legislature’s concern with public safety.

24
      This might be a different case if Mr. Shaw was forced out of his
home because a school was built within 2,000 feet of his residence, but Mr.
Shaw has not presented any evidence that he was forced out by a newly
built school. Cf. Commonwealth v. Baker, 295 S.W.3d 437, 445-46 (Ky.
2009) (explaining that the Kentucky sex-offender regulation statute caused
sex offenders to “face[] a constant threat of eviction” from newly built
schools and parks and that the state statute at issue has “inherent flaws,”
preventing a rational connection between the Kentucky statute and a non-
punitive purpose); see also Part II, above. Mr. Shaw is unable to live in his
home because he failed to verify that it complied with the residency
restrictions; he was not pushed into homelessness by the residency
restrictions.

                                      37
      6.    The Oklahoma statute is not excessive in relation to
            concerns for public safety.

      Fifth, we consider whether the statute is excessive in relation to its

non-punitive purpose. Smith, 538 U.S. at 103. In conducting this inquiry,

we do not consider whether the Oklahoma legislature made the “best

choice possible.” Id. at 105. Instead, we consider only whether the statute

reasonably promotes a non-punitive objective. Id. In our view, the statute

does so.

      a.    A statute is excessive if it categorically imposes disabilities
            or restraints that are particularly harsh.

      The Supreme Court has generally endorsed rules that apply

categorically. See, e.g., id. at 103 (“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.”); see also Doe v. Miller, 405 F.3d 700, 721 (8th Cir. 2005)

(“The absence of a particularized risk assessment . . . does not necessarily

convert a regulatory law into a punitive measure.”). But particularly harsh

disabilities or restraints, when applied categorically, can be excessive in

relation to a non-punitive purpose. See, e.g., Kansas v. Hendricks, 521

U.S. 346, 357-58, 364 (1997) (civil commitment for sexually violent

predators); see also Smith, 538 U.S. at 104 (“The magnitude of the

restraint [at issue in Kansas v. Hendricks] made individual assessment

appropriate.”). Thus, to avoid a punitive effect, a statute imposing a

                                      38
particularly harsh disability or restraint must allow an individualized

assessment. An individualized assessment helps to ensure that a statute’s

particularly harsh disability or restraint is rationally related to a non-

punitive purpose.

      For example, in Kansas v. Hendricks, a Kansas statute imposed civil

commitment on certain individuals diagnosed with a “mental abnormality

or personality disorder” that predisposed them “to commit sexually violent

offenses.” 521 U.S. at 352. Though the Kansas statute retroactively

imposed a severe restriction—civil commitment—this restriction was not

excessive because an individualized medical diagnosis was necessary for

the civil commitment. See United States v. Salerno, 481 U.S. 739, 746-49

(1987) (holding that pretrial detention for certain arrestees did not

constitute punishment, in part because arrestees were individually

evaluated for dangerousness).

      b.    Mr. Shaw’s reporting requirements are not excessive
            because they are not particularly harsh and reflect a
            reasonable legislative judgment.

      Mr. Shaw must report to his local police department in person—

either weekly or quarterly, depending on whether he remains transient—as

long as he lives in Oklahoma. Okla. Stat. tit. 57, § 584(A)(5), (G) (Supp.

2009). These reporting requirements are reasonable in light of the statute’s

non-punitive purpose of protecting public safety. To further that non-

punitive purpose, the Oklahoma legislature could reasonably have based

                                       39
the reporting requirements on the severity of the sex offense and the

offender’s transience.

      In Smith, the Supreme Court explained that “the . . . minor condition

of registration,” even if required on a regular basis for the duration of an

offender’s life, is not excessive. Smith, 538 U.S. at 104. Similarly, the

Oklahoma legislature could reasonably have decided to impose stricter

requirements on transient sex offenders because of a heightened public-

safety concern. 25 See Part III(C)(4)(b)(i), above (citing authorities for the

reasonableness of a legislature’s decision to impose greater reporting

requirements on sex offenders that are transient than on those with stable

residences).

      We do not regard Mr. Shaw’s reporting requirements as excessive

because the requirements further the statute’s non-punitive purpose of

protecting public safety.

25
       Nine other states require transient sex offenders to report in-person
every week. Ala. Code § 15-20A-12(b) (2015); Idaho Code § 18-8308(4)
(2015); 730 Ill. Comp. Stat. 150/6 (2014); Ind. Code § 11-8-8-12(c)
(2014); Md. Code Ann., Crim. Proc. § 11-705(d)(2) (LexisNexis 2015);
Minn. Stat. § 243.166(3a)(e) (2014); Tex. Code Crim. Proc. Ann.
art. 62.051(h)(1)-(2) (West Supp. 2015); Wash. Rev. Code
§ 9A.44.130(6)(b) (Supp. 2016); Wyo. Stat. Ann. § 7-19-302(e) (2015).
Another ten states require reporting every month or quarter. Ark. Code
Ann. § 12-12-909(a)(6) (Supp. 2015); Cal. Penal Code § 290.011(a)
(Deering Supp. 2016); Fla. Stat. § 943.0435(4)(b)(2) (2015); Haw. Rev.
Stat. § 846E-5 (2014); Kan. Stat. Ann. § 22-4905(e) (Supp. 2014); Mass.
Gen. Laws ch. 6, § 178F (2012); Mont. Code Ann. § 46-23-504(5) (2015);
Nev. Rev. Stat. § 179D.470(3) (2015); 42 Pa. Cons. Stat. § 9799.15(h)(1)
(2014); Tenn. Code Ann. § 40-39-203(f) (Supp. 2015).

                                      40
      c.    The residency restrictions represent a reasonable legislative
            judgment, and Mr. Shaw has not demonstrated that the
            residency restrictions are excessive for his circumstances.

      Mr. Shaw’s residency restrictions are not excessive as applied to his

circumstances. As discussed above, residency restrictions are generally

designed to reduce temptations and opportunities for sex offenders to prey

on children. See Part III(C)(5)(b), above. The legislature could reasonably

try to advance this goal by creating a categorical rule for sex offenders.

See Doe v. Miller, 405 F.3d 700, 721-22 (8th Cir. 2005) (concluding that

categorical, class-based restrictions are not excessive if the restrictions

further a legislature’s regulatory purpose); see also People v. Mosley, 344

P.3d 788, 802 (Cal. 2015) (concluding that statutory residency restrictions

for sex offenders “seem . . . no harsher” than occupational debarment,

which the Supreme Court has said is nonpunitive and not excessive).

      And Mr. Shaw has not presented evidence that the residency

restrictions are excessive in his circumstances. For example, he has not

shown that his own risk of recidivism is particularly low or that the

residency restriction goes beyond what is necessary in his circumstances.

See Miller, 405 F.3d at 722-23 (deferring to the legislature on the precise

distance and specifics of a residency restriction).

      Under these circumstances, we conclude that the legislature could

reasonably set out to reduce recidivism by restricting where sex offenders



                                      41
can live. As a result, the residency restrictions did not create an excessive

burden on sex offenders.

IV.   Mr. Shaw did not preserve or adequately challenge the loitering
      restrictions.

      Mr. Shaw argues that Oklahoma’s loitering restrictions amount to an

affirmative disability or restraint that is considered punitive. See

Appellant’s Opening Br. at 26. But we reject this argument because it was

forfeited in district court and is not adequately argued on appeal.

      First, Mr. Shaw did not argue to the district court that Oklahoma’s

loitering restrictions constitute retroactive punishment. See Appellant’s

App’x at 37-38 (Final Pretrial Report). As a result, this argument was

forfeited. See United States v. Battles, 745 F.3d 436, 445 n.9 (10th Cir.

2014). Ordinarily, this argument would be reviewable under the plain error

standard. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.

2011). But Mr. Shaw has not urged plain error; as a result, we decline to

consider the new argument. See id. at 1130.

      Second, Mr. Shaw has not adequately addressed the intent-effects test

for the loitering restrictions. For these restrictions, Mr. Shaw addresses

only one of the five Smith factors: the existence of an affirmative disability

or restraint that is considered punitive. But he does not discuss how the

other four factors would apply to the loitering restrictions. Thus, Mr. Shaw

has not provided “the clearest proof” that the loitering restrictions have a


                                      42
punitive effect. See Lehman v. Penn. State Police, 839 A.2d 265, 271

(Penn. 2003) (stating that the existence of an affirmative disability or

restraint, in itself, does not provide the clearest proof of a punitive effect);

see also State v. Eighth Judicial Dist. Court (Logan D.), 306 P.3d 369, 388

(Nev. 2013) (holding that a state sex-offender law was not punitive when

only one factor indicated a punitive effect); DeVita v. District of

Columbia, 74 A.3d 714, 721 (D.C. 2013) (holding that proof of a single

Smith factor “is certainly not enough to provide ‘the clearest proof’” of a

punitive effect).

V.    Conclusion

      We affirm. Mr. Shaw does not argue that the Oklahoma legislature

had a punitive intent, and he has not provided the clearest proof of the

restrictions’ punitive effect. As a result, we affirm the judgment for the

defendant. 26




26
      Because Mr. Shaw brought an as-applied challenge, our conclusion is
limited to Mr. Shaw’s circumstances.

                                       43
