Doe v. Poritz

662 A.2d 367, 142 N.J. 1, 36 A.L.R. 5th 711, 1995 N.J. LEXIS 519

Opinions

The opinion of the Court was delivered by

WILENTZ, C.J.

On October 31, 1994, a group of bills concerning sex offenders became law. They are generally referred to as “Megan’s Law,” named after the second female child abducted, raped, and murdered during the prior year. The question before us is whether two of those bills, the Registration and Community Notification Laws, are constitutional. L.1994, c. 133 (Registration Law, N.J.S.A. 2C:7-1 to -5) and L.1994, c. 128 (Community Notification, N.J.S.A. 2C:7-6 to -11). We hold that they are, but that the prosecutor’s decision to provide community notification, including the manner of notification, is subject to judicial review before such notification is given, and that such review is constitutionally required. In most respects, we affirm the judgment of the trial court.

The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders’ loss of anonymity is no constitutional bar to society’s attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State’s or our country’s fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, ■ adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.

The choice the Legislature made was difficult, for at stake was the continued apparently normal lifestyle of previously-convicted sex offenders, some of whom were doing no harm and very well might never do any harm, as weighed against the potential molestation, rape, or murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence. The Legislature chose to risk unfairness to the previously-convicted offenders rather than unfairness to the children and women who might suffer because of their ignorance, but attempted to restrict the damage that notification of the public might do to the lives of rehabilitated offenders by trying to identify those most likely to reoffend and limiting the extent of notification based on that conclusion.

The legislative choice was undoubtedly influenced by the fact that if the law did not apply to previously-convicted offenders, notification would provide practically no protection now, and relatively little in the near future. The Legislature reached the irresistible conclusion that if community safety was its objective, there was no justification for applying these laws only to those who offend or who are convicted in the future, and not applying them to previously-convicted offenders. Had the Legislature chosen to exempt previously-convicted offenders, the notification provision of the law would have provided absolutely no protection whatsoever on the day it became law, for it would have applied to no one. The Legislature concluded that there was no justification for protecting only children of the future from the risk of reoffense by future offenders, and not today’s children from the risk of reoffense by previously-convicted offenders, when the nature of those risks were identical and presently arose almost exclusively from previously-convicted offenders, their numbers now and for a fair number of years obviously vastly exceeding the number of those who, after passage of these laws, will be convicted and released and only then, for the first time, potentially subject to community notification.

I

The Legislative Purpose: Addressing the Problem of Repetitive Sex Offenders

The challenged laws before us in this case have two basic provisions. First, they require registration with law enforcement authorities of certain convicted sex offenders and spell out the offenses that trigger the registration requirement, registration of those convicted prior to their passage limited to offenders found to have repetitive and compulsive characteristics. Second, they provide for notice of the presence of such offenders in the community, the scope of that notice measured by the likelihood that such offenders will commit another sex offense: where the risk of such reoffense is low, only law enforcement authorities are notified; where it is moderate, institutions and organizations having the responsibility to care for and supervise children and women are notified; and where the risk is high, those members of the public likely to encounter the offender are notified.

The purpose of the registration and the subsequent notification is set forth in the legislation itself.

1. The Legislature finds and declares:

a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law enforcement officials to identify and alert the public when necessary for the public safety.

b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and missing persons.

[N.J.S.A. 20:7-1.]

The legislative concern about the problem, and the remedy selected, are best understood in the light of the nature and extent of the problem. There are varying views on that subject, but it is clear that the Legislature in formulating its policy accepted the view of the problem, and the facts concerning it, that follow. Such a legislative determination is beyond judicial review.

Based on statistical and other studies the Legislature could have found, and presumably did find, the following facts, essentially reflected in its statement of purpose, and its enactment of the laws:¹

[S]tudies describing recidivism by sex offenders indicate the severity of the problem the Legislature addressed in Megan’s Law. Studies report that rapists recidivate at a rate of 7 to 35%; offenders who molest young girls, at a rate of 10 to 29%, and offenders who molest young boys, at a rate of 13 to 40%. Further, of those who recidivate, many commit their second crime after a long interval without offense. In cases of sex offenders, as compared to other criminals, the propensity to commit crimes does not decrease over time____ [I]n one study, 48% of the recidivist sex offenders repeated during the first five years and 52% during the next 17 years____

As Doe acknowledges, successful treatment of sex offenders appears to be rare. He correctly notes that very few offenders sentenced to ADTC [Adult Diagnostic and Treatment Center] ever meet the dual standards required for parole from ADTC. Indeed, according to Department of Correction’s statistics between 1980 and 1994 only 182 inmates were paroled from ADTC. While plaintiff was among the few who were released as “capable of making an acceptable social adjustment in the community,” the large majority of ADTC inmates leave only after having served their maximum sentences. During the same time frame, 1980-1994, 712 inmates were released from ADTC at expiration of term.

[Response Brief for Attorney General at 6-8 (citations omitted).]

Further information gleaned from similar studies strongly reinforces the foregoing:

Sexual crimes are notoriously underreported. Such data as are available, however, demonstrate that them impact is substantial and widespread. A nationwide sampling of households by the Justice Department for the years 1987 to 1991 indicates that every year nearly 133,000 women in the United States age 12 or older were victims of rape or attempted rape, 44% committed by strangers. Twenty-one percent of the total involved weapons (29% of stranger rapes), and 47% of all victims (60% of victims of strangers) sustained injuries in addition to the rape itself. The Justice Department also estimates from police reports that nationwide about 17,000 girls under age 12 were raped in 1992, 54% by non-family members (acquaintances and strangers). And based solely on incidents reported to the police, a Justice Department study shows that in 1988 as many as 4,600 children of both sexes were abducted or detained by non-family members, nearly always by force (85-87%) and usually with a weapon (75-85%), and more than two-thirds of these children were sexually assaulted.

Sexual assault takes a heavy toll on its victims, particularly on children. Recent research indicates that a number of psychosocial problems — including chronic depression and anxiety, isolation and poor social adjustment, substance abuse, suicidal behavior, and involvement in physically or sexually abusive relationships as either aggressor or victim — are more common among adults molested as children than among those with no such childhood experiences. Victims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization. An especially disturbing finding about child sexual abuse is its strong intergenerational pattern; in particular, due to the psychological impact of their own abuse, sexually abused boys have been found to be more likely than non-abused boys to turn into offenders against the next generation of children, and sexually abused girls are more likely to become mothers of children who are abused. And studies show that adult male aggressive behavior, particularly sexual aggression, is associated with the trauma of childhood sexual abuse. Thus, apart from the substantial personal trauma caused to the victims of such crimes, sexual crimes against children exact heavy social costs as well.

[Brief for the United States at 5-8 (citations omitted).]

On the critical issue of recidivism, the Legislature presumably adopted the view suggested in the following information, supportive of that stated in the studies relied on by the Attorney General:

Sex offender recidivism compounds the problem. As a group, sex offenders are significantly more likely than other repeat offenders to reoffend with sex crimes or other violent crimes, and that tendency persists over time. A 15-year follow-up study by the California Department of Justice of 1,362 sex offenders arrested in 1973 found that 19.7% were rearrested for a subsequent sexual offense. Those first arrested for rape by force or threat had the highest recidivism rate, 63.8% for any offense, and 25.2% for a subsequent sex offense. Sex offenders were five times as likely as other violent offenders, and more than'six times as likely as all types of offenders, to reoffend with a sex offense. Similarly, a Washington State study of 1,373 adult male sex offenders convicted between 1985 and 1991 and released by the end of 1991 showed that after seven years of follow-up, 12% were rearrested for sex offenses and an additional 3% were rearrested for violent offenses. Of the 110 offenders reconvicted of a sex offense, 43% were reconvicted of a more serious sex offense.

These figures comport with other data on sex offender recidivism. A major Justice Department study of state prisoners released in one year showed that 7.7% of released rapists were rearrested for rape within three years. Moreover, 27.5% of released rapists were rearrested during that period for some kind of violent offense (murder, rape, robbery, or assault). Released rapists were 10.5 times more likely to be rearrested for rape than were other released prisoners; likewise, prisoners who had served time for other sexual assaults were 7.5 times more likely than other released prisoners to be rearrested for sexual assault. A recent review of the most frequently cited studies of sex offender recidivism indicates that rapists repeat their offenses at [ ] rates up to 35%; offenders who molest young girls, at [ ] rates up to 29%; and offenders who molest young boys, at [] rates up to 40%. Moreover, the recidivism rates do not appreciably decline over time, and thus, in contrast with other types of offenders, the tendency to reoffend does not appear to decline with an offender’s increasing age. It has been estimated that extrafamilial child molesters have an average of as many as 19.8 victims (for those molesting a girl) and 150 victims (for those molesting a boy).

[/<£ at 8-10 (citations omitted).]

Clearly, both the Legislature’s and the public’s increasing awareness of the dangers posed by sex offenders triggered laws here, and elsewhere, as the understanding of the problem was accelerated by the occurrence of highly publicized and horrific offenses. In 1994 Congress enacted legislation requiring states, as a condition to some federal funding, to enact registration laws covering certain sex offenders. Those registration laws, aimed particularly at protecting minors and the potential victims of sexually violent offenses, would require registrants to verify their addresses annually for ten years (as well as changes in address) and to provide fingerprints and a photograph, and would explicitly permit release of information necessary to protect the public “concerning a specific person required to register.” 42 U.S.C.A § 14071(b) and (d). Apparently, some members of Congress believed the provision allowing community notification was crucial to preventing future crimes. See, e.g., 140 Cong.Rec. H5612-17 (daily ed. July 13, 1994) (remarks of Reps. Dunn and Ramstad); id. S10502 (daily ed. August 3, 1994) (remarks of Sen. Lautenberg); id. S10710 (daily ed. August 5, 1994) (remarks of Sen. Gorton); id. S11889-90 (daily ed. August 16, 1994) (remarks of Sens. Gorton and Lautenberg); id. H8981-82 (daily ed. August 21, 1994) (remarks of Rep. Ridge); id. S12544-45 (daily ed. August 25, 1994) (remarks of Sens. Lautenberg and Dole).

The laws before us, therefore, do not simply reflect the awful experience of the past year or so in New Jersey, but a national trend reflecting a national problem. The remedy selected by our Legislature goes beyond the ability of citizens to request the criminal record of their neighbors when they may have no reason to make such requests. The remedy goes directly to the question of what a community can do to protect itself against the potential of reoffense by a group the Legislature could find had a relatively high risk of recidivism involving those crimes most feared, and those crimes to which the most vulnerable and defenseless were exposed — the children of society. The spectacle of offenses committed by neighbors, known in the public records as significantly potential reoffenders, but not known to anyone else, and especially not known to those most likely to be affected, their neighbors, suggested the most obvious and practical degree of protection: a law that would tell neighbors and others who might be affected, of the presence of such offenders, no more and no less.

The concern for the potential unfairness of identification has some justification, but it is wrong to assume the people of this State and the media will not understand that potential. The Attorney General points to information, far from complete because of the injunction against the implementation of these laws, that suggests that harassment and vigilantism have been minimal. This Court has no right to assume that the public will be punitive when the Legislature was not, that the public, instead of protecting itself as the laws intended, will attempt to destroy the lives of those subject to the laws, and this Court has no right to assume that community leaders, public officials, law enforcement authorities, will not seek to educate the public concerning the Legislature’s intent, including appropriate responses to notification information, responses that are not at all punitive, but seek mérely to protect their children, their families, and others from reoffense. And this Court has no right to assume the media will not act responsibly.

The dissent’s historical analysis, though relevant, is followed by, and ultimately amounts to, a prediction of a destructive and punitive community reaction that converts the statutory protection into punishment. As we have noted in this opinion, we do not believe the Court should determine this constitutional question based on such a prediction. The Attorney General has strongly warned that vigilantism and harassment will not be tolerated; we have no reason to believe that the Governor and the Legislature will tolerate it; and, for the purpose of constitutional adjudication, despite the branding, stocks, and pillory of prior centuries, we have no right to assume the public will engage in it. We assume that the strongest message will be delivered, and repeated, by the Governor and other public officials at all levels, as well as by community and religious leaders and the media, that this is a law that must be used only to protect and not to punish, and that all citizens must conform their conduct accordingly, a message given at community meetings, schools, churches, synagogues, and everywhere throughout the state.

The dissent refers to two examples of harassment and worse. One has already led to an indictment, the other involves conduct that may very well be subject to criminal sanctions if and when it occurs again. See N.J.S.A. 2C:33-4. Obviously, as the dissent acknowledges, future community reactions are impossible to discern. Despite that observation, the heart of the dissent is its prediction of the most severe consequences visited upon previously-convicted sex offenders, the clear implication being that they will regularly, almost invariably, occur. We do not suggest any absolute rule that a court should never pass constitutional judgment in a case on the basis of its unalterable conviction concerning predicted community conduct. This is not such a case, however. We do not perceive in this case a society clamoring for blood, demanding the names of previously-convicted sex offenders in order to further punish them, but rather families concerned about their children who want information only in order to protect them. Presumably, some citizens will harass, and presumably they will be prosecuted, but we believe that overwhelmingly our citizens are law-abiding citizens. We do not share the certainty of the dissent in the probability of community reaction that would gut the protective purpose of these laws and convert them into punishment. We decline to decide this ease on that assumption.

II

The Laws and the Attorney General’s Guidelines

Despite complexities of detail, the Registration Law is basically simple. It requires registration of sex offenders convicted after its effective date and all prior-convicted offenders whose conduct was found to be repetitive and compulsive. The sex offenses that trigger the laws for those previously convicted are aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to N.J.S.A 2C.T3-1 (c)(2), and for those convicted after their effective date, added to the foregoing are various laws concerning endangering the welfare of a child, luring or enticing, criminal sexual contact if the victim is a minor, and kidnapping, criminal restraint, or false imprisonment if the victim is a minor and the offender not the parent; and in all cases an attempt to commit any of the foregoing. N.J.S.A 2C:7-2b(l) and (2).²

Registration requires, in the case of those no longer in custody — generally those who committed the offense before adoption of the laws — appearance at a local police station for fingerprinting, photographing, and providing information for a registration form that will include a physical description, the offense involved, home address, employment or school address, vehicle used, and license plate number. N.J.S.A 2C:7-4(1) and (2). For those in custody, the procedure is effected at that location. The forms, information, fingerprints, and photographs (or copies) are centrally collected by the State Police and prosecutors. The registration requirement applies to all convicts, all juveniles, no matter what their age, found delinquent because of the commission of those offenses, and to all found not guilty by reason of insanity. The requirements apply as well to sex offenders convicted elsewhere who relocate to this state. Registrants whose conduct was repetitive and compulsive must verify their addresses with the local law enforcement agency quarterly, other registrants must do so annually. Upon relocation to another municipality, re-registration is required there, and, apparently, any change of address requires notice to the local law enforcement agency.³

All of these are lifetime requirements unless the registrant has been offense-free for fifteen years following conviction or release from a correctional facility (whichever is later) and, on application to terminate these obligations, can persuade the court that he or she is not likely to pose a threat to the safety of others. N.J.S.A. 2C:7-2f. Registration records are open to any law enforcement agency in the state, or any other state, or any federal law enforcement agency. N.J.S.A 2C:7-5. Failure to comply with the Registration Law is a fourth-degree crime. N.J.S.A 2C:7-2a.

The Community Notification Law requires the local chief of police to give notification of the registrant’s presence in the community, such notification is also required if the registrant changes address (presumably whether within or outside of the community although the statutory language refers only to the latter). N.J.S.A 2C:7-7.⁴ The law provides for three levels of notification (referred to as Tiers One, Two and Three in the Guidelines) depending on the risk of reoffense.

(1) If risk of reoffense is low, law enforcement agencies likely to encounter the person registered shall be notified;

(2) If risk of reoffense is moderate, organizations in the community including schools, religious and youth organizations shall be notified in accordance with the Attorney General’s Guidelines, in addition to the notice required by paragraph (1) of this subsection;

(3) If risk of reoffense is high, the public shall be notified through means in accordance with the Attorney General’s Guidelines designed to reach members of the public likely to encounter the person registered, in addition to the notice required by paragraphs (1) and (2) of this subsection.

ÍN.J.S.A 2C:7-8c.]

No suggestion has been made that any registrant could be classified as posing no risk of reoffense: presumably then, all registrants will be subjected at the very least to Tier One Notification (called “Law Enforcement Alert” in the Guidelines). Although the statute provides that the risk of reoffense, and therefore the extent (the level, the Tier) of notification shall be assessed by the prosecutors of the county of conviction and the county of residence together with any law enforcement officials that either deems appropriate, the Guidelines appear to require the final assessment to be made by one prosecutor, apparently the prosecutor of the county of residence.

The “means” of providing notification, after deciding the appropriate Tier or level of notification, is to be determined by the prosecutor of the county of residence. N.J.S.A. 2C:7-8d(l) and (2). The Guidelines deal with that subject as well, Guideline VI, Methods of Community Notification, suggesting involvement of local law enforcement in that determination. The Attorney General is given broad powers under the laws to adopt “Guidelines” apparently intended to be binding on all law enforcement agencies. Those Guidelines were adopted within the statutory time period after the Attorney General consulted with members of the “Notification Advisory Council” established by the statute. N.J.S.A. 2C:7-11. Those Guidelines are to be reviewed again one year after the effective date of the law for “changes or revisions” at which point “the Council shall expire.” Ibid.

The Guidelines, in accordance with the statute, add factors to be considered in assessing risk, provide greater specificity in allocating responsibility for that assessment and for determining the scope of notification, significantly define the substance of Tier Two (community organization) notification and its purposes, provide for the maintenance of records of notification and the circumstances under which they may be disclosed, require training of those involved in the notification process, and require levels of confidentiality of the disclosed information, restrictions on its dissemination, and a strong warning against vigilantism and harassment of the offenders, their families, employers, and schools. Appended to the Guidelines are the forms to be used in connection with notification. They conform fairly to the statute’s intent to provide only that information needed by organizations or that part of the community likely to encounter the offender — the offense, a description and photograph of the offender, the offender’s automobile and license plate, home address, address of employment or school, along with the warning about vigilantism and harassment.⁵

All of these provisions of the laws, the requirements for registration, the provisions for notification, the Tiers, and the many other related parts, are tied together by the statement of legislative purpose mentioned above found at the beginning of the Registration Law: to aid law enforcement in apprehending sex offenders and to enable communities to protect themselves from such offenders. Together these laws are fairly designed to achieve those purposes. The Community Notification Law, along with the Attorney General’s Guidelines, provide a coherent system of notification calibrated to the degree of risk of reoffense: low-risk offenders or higher will trigger notification to law enforcement who will thereby have ready aceess to all offenders in the area when needed either because of reported or perceived threats, or actual incidents when quick response is most important; moderate offenders and higher will trigger a notification calculated to alert organizations charged with the supervision and care of children or women, which are likely to encounter them, to their potential presence and risk; and high-risk offenders will trigger notification to that portion of the community likely to encounter them.

We are aware of the uncertainties that surround all aspects of the subject of sex offender recidivism and the effectiveness of preventive measures. Legislatures, despite uncertainty, must sometimes act to deal with public needs, basing such action on what they conclude, in a welter of conflicting opinions, to be the probable best course. Our Legislature could reasonably conclude that risk' of reoffense can be fairly measured, and that knowledge of the presence of offenders provides increased defense against them. Given those conclusions, the system devised by the Legislature is appropriately designed to achieve the laws’ purpose of protecting the public.⁶

III

The Challenges to the Laws

Although plaintiff is seeking relief only for himself, our decision will affect all sex offenders covered by the laws. Plaintiffs claims are the same as any offender could assert, whether convicted before or after the enactment of these laws, although his ex post facto and bill of attainder claims apply only to previously-convicted offenders. The claims that can be made by offenders convicted after the enactment of the laws, double jeopardy, cruel and unusual punishment, invasion of privacy, equal protection, and procedural due process, can also be made by plaintiff.

Plaintiff seeks an injunction against application of both the Registration and Notification Laws to him and seeks in part to confine our ruling to his special situation, a first-time offender who successfully completed treatment at the Adult Diagnostic and Treatment Center at Avenel, was paroled, successfully completed parole, and has been living and working in the community. He has not reoffended, is apparently totally integrated in and accepted by the community, which, except for his employer and co-employees, is ignorant of his offense. He offers proof that notification will lead to the loss of his job.

Despite this attempt to narrow the issue and challenge the laws as applied to him, the record and our view of the applicable legal doctrines leave plaintiff in precisely the same position as any offender making the same attacks (except, obviously, those attacks that can be mounted only by previously-convicted offenders). We do not find plaintiffs alleged special characteristics — not yet subjected to challenge — to confer on him any constitutional or legal rights different from any other offender. Essentially, those characteristics are relevant only to his ultimate Tier classification, but given our view of the law, the fact that an offender may be able to prove an extremely low probability of reoffense does not exempt him from the law, or transform his facial attack to one as applied, or, on this record, entitle him to relief that might resolve the case without passing on the issues. Having no idea what the entire record concerning plaintiff will reveal, we cannot be assured that he will not properly be classified as a Tier Three offender, highly likely to reoffend, since there has as yet been no full inquiry into all of the factors that determine Tier classification, no inquiry into his behavior in the community and no up-to-date psychological profile of plaintiff.

We note, since it is not apparently emphasized by the parties either in their briefs or at oral argument, that if plaintiffs attacks are successful these laws may be invalidated not only for previously-convicted offenders but for all sex offenders who are convicted in the future. Recent United States Supreme Court cases show that plaintiffs double jeopardy claim is no different from that which would be made by future sex offenders who are required after conviction and completion of punishment to register and be subject to notification, alleged by plaintiff to be a second, and therefore impermissible, punishment. Therefore, if plaintiffs ex post facto attack is sustained, it seems most likely that the double jeopardy attack will succeed as well for in this case the basis for each seems indistinguishable: both claim registration and notification constitute a second punishment for conduct previously punished.⁷

The asserted invalidity of the process used to determine the extent of notification is similarly available to offenders convicted both prior to and after the enactment of the law. If a “liberty interest” is implicated for one, the same notification infringes it for the other, triggering, if so, procedural due process rights. And quite obviously, if registration and notification are punishment, and moreover cruel and unusual, that characterization would apply to all subject to the laws. And the same may be said -with equal force about claims of invasion of privacy.

Plaintiff has claimed that the laws constitute an unreasonable search and seizure. The point was not raised below and appears for the first time in plaintiff’s brief before us. We conclude there is no merit to the contention and decline to treat it in detail.⁸

IV

Interpretation of Statute; Revision of Attorney General’s Guidelines; Judicial Review

Our resolution of the challenges to the laws is based on our interpretation of them and our revision of the Guidelines. Although not essential to our conclusion that the laws and Guidelines together are constitutional, that interpretation and those revisions are strongly supportive of our decision. See, e.g., New Jersey Chamber of Commerce v. New Jersey Election Law Enforcement Comm’n, 82 N.J. 57, 75, 411 A.2d 168 (1980) (noting Court’s power to revise statute “to free it from constitutional doubt or defect”); In re Kimber Petroleum, Corp., 110 N.J. 69, 83, 539 A2.d 1181 (1988) (reading judicially created provision into law in order to avoid its invalidation). We describe them here in order to provide a better understanding of our analysis and conclusions set forth in later sections of this opinion. The basic attack on these laws is the alleged excessiveness of community notification. Our interpretation and revisions strictly confine that notification in accordance with legislative intent. The judicial review required by our opinion assures implementation of that intent. It is therefore also described in this section.

We have interpreted the statute to require for Tier Two notification that the institution or organization to be notified is one that is “likely to encounter” the offender. Later in this section we have defined, both for Tiers Two and Three, what “likely to encounter the offender” means and have also set forth standards intended to clarify the difference between low, moderate, and high risk. As for the Guidelines, we have clarified or revised them in order to assure that they conform to the statute. We have required that the statutory factor “behavior in the community following service of sentence” be considered in all Tier classifications; that the statutory factor “whether psychological or psychiatric profiles indicate a risk of recidivism” be available not only to increase the risk assessment, but to decrease it.

Having interpreted the statute to require Tier Two notification to be based on “likely to encounter,” we have modified the automatic nature of Tier Two notification so as to require an individual determination concerning such institutions and organizations. We have underlined the Attorney General’s interpretation, and accepted it, limiting Tier Two notification to those organizations that actually are in charge of the care or supervision of children or women. We have limited Tier Three notification to conform to the “likely to encounter” requirement of the statute, thereby revising those provisions of the Guidelines that suggest the possibility that notification would be extended to the entire community regardless of whether those notified are likely to encounter the offender.

The most significant change, of course, is the requirement, on application, of judicial review of the Tier classification and the manner of notification prior to actual notification. Because we have concluded that despite its constitutionality, the statute sufficiently impinges on liberty interests to trigger both procedural due process and the fairness doctrine in our state, see infra Section IX, those subject to the statute are entitled to the protection of procedures designed to assure that the risk of reoffense and the extent of notification are fairly evaluated before Tier Two or Tier Three notification is implemented. Although the provisions of the statute and the implementing Guidelines are obviously designed to assure such evaluation, and although there is no reason to believe that the prosecutors and other law enforcement personnel charged with the decision-making power that controls both the level of notification and the specific steps that will determine the amount of notification will not discharge their duties competently and fairly, we have concluded that judicial review through a summary proceeding should be available prior to notification if sought by any person covered by the law. The Attorney General, therefore, as a condition to the enforcement of this law, shall formulate procedures designed to assure that notice is given in sufficient time prior to Tier Two or Tier Three notification to allow the offender to object. We realize that in some cases it may be impossible as a practical matter to give such notice, or to give it timely, and in those cases it may be dispensed with.

The written notice shall inform the offender of the proposed level and specific manner and details of notification and inform him or her that unless application is made to a court on or before the date mentioned in the notice (which shall not be shorter than two weeks after the giving of the notice), the notification will take place, but that if such application is made, there will be no notification until and unless affirmed by the court or, if reversed, until and unless the prosecutor provides notification in accord with the reasons for reversal. The notice shall inform the subject of the right to retain counsel (and that counsel will be provided by the court if he or she cannot afford counsel) and of the necessity that the application be timely made, and shall specifically inform him or her how such application should be made if counsel is not retained — a simple letter delivered to the Assignment Judge (named in the notice) in the courthouse in the county of the offender’s residence that encloses the prosecutor’s notice and indicates the offender’s objection to it, disagreement with it, or the simple fact that he or she does not want the notification to be given.

The court shall immediately upon receipt of such objection set down a date for summary hearing and decision of the issue. If the offender does not have counsel, the court shall assign same. We strongly suggest that legislation providing for that representation be adopted. The prosecutor shall forthwith turn over all papers, documents, and other material, including the prosecutor’s findings and statement of reasons for the level and manner of proposed notification to the court and to the offender and counsel.

The court shall control the manner of the summary proceeding, which shall be in camera, including determining whether and to what extent production of witnesses and cross examination shall be required or allowed, basing its determinations on the apparent complexity of the matter, the extent of doubt concerning the correctness of the level and manner of notification selected by the prosecutor, as well as the apparent need for prompt determination, presumptively present in all cases. The rules of evidence shall not apply and the court may rely on documentary presentations, including expert opinions, on all issues. The court shall either affirm or reverse the prosecutor’s determination, and in the case of a reversal the court shall indicate those respects in which the proposed notification does not conform to the laws and the requirements found in this opinion. Upon affirmance, or compliance with the terms of the reversal, notification may be given in the absence of any contrary judicial order. The trial court shall not automatically stay the effect of an affirmance to allow time for application to an appellate court, but shall grant same only if justified by the circumstances of the case.

We attempt by these procedures to reach a difficult accommodation between the State’s legitimate and substantial interest in effecting prompt notification and the offender’s legitimate interests in assuring accurate evaluation of the risk of reoffense and the proper determination of the manner of notification.

In these proceedings, the State shall have the burden of going forward, that burden satisfied by the presentation of evidence that prima facie justifies the proposed level and manner of notification. Upon such proof, the offender shall have the burden of persuasion on both issues, that burden to remain with the offender. In other words, the court, assuming the State has satisfied its burden of going forward, shall affirm the prosecutor’s determination unless it is persuaded by a preponderance of the evidence that it does not conform to the laws and Guidelines.

We mention some of the substantive considerations that will control the court’s decisions. The most difficult question is the standard for reviewing the Tier classification, for it is expressed in the statute simply in terms of “moderate risk” and “high risk,” the determination aided somewhat by the factors listed in the law as well as those in the Guidelines. We have mentioned some respects in which the factors set forth in the Guidelines do not conform to the statute, and the prosecutors and the court shall interpret those factors as we have indicated in this opinion. But the factors do not sufficiently define moderate risk and high risk to allow for adequate review of the determination.

The only issue for the court on the Tier level of notification is the risk of reoffense. In that sense the factors of the Guidelines noting the characteristics of prior offenses or of the offender are relevant only to the risk of reoffense, i.e., the likelihood of its occurrence. That is the clear intent of the statute. All offenders required to register are, by statute, subject to at least Tier One notification, meaning that no matter how low the risk of reoffense, the Legislature has concluded Tier One notification is required.

We conclude that the legislative intent was to use the word “moderate” in comparison to the “low” risk that the Legislature found was minimally characteristic of all those sex offenders required to register. Where Tier Two notification is sought, the State’s prima facie case shall include a description of the class of sex offenders required to register who constitute low-risk offenders, including a description of that risk, which need not necessarily be statistical; a further description of that class of sex offenders required to register who constitute moderate-risk offenders, including a description of that risk, not necessarily statistical; some proof, in the form of expert opinion or otherwise, that the moderate-risk offender class poses a risk of reoffense substantially higher than the low-risk class, and that the offender before the court is a moderate-risk offender who poses such a substantially higher risk.

Where Tier Three notification is sought, the State’s prima facie case shall include, in addition to the description of low-risk and moderate-risk offenders and of the risks associated with each class, a description of the class of sex offenders required to register who constitute high-risk offenders, including a description of that risk, not necessarily statistical; some proof, in the form of expert opinion or otherwise, that the high-risk offender class poses a risk of reoffense substantially higher than the moderate-risk offender class, and that the offender before the court is a high-risk offender who poses that substantially higher risk.

We realize the generality of the standard against which the court will decide the correctness of the Tier level decision, but given the unavoidable uncertainties in this entire area, we do not believe it is realistic to impose requirements of proof of some statistical differentiation of the risk of reoffense between the classes or between the offender before the court and the typical offender of the other classes. We can say no more about the meaning of “substantially higher” other than that it is intended to portray a difference in risk so significant as to warrant the conclusion that the Legislature intended this most substantial difference in the level and therefore the manner of notification.

We note that in Schall v. Martin, 467 U.S. 253, 104 S.Ct 2403, 81 L.Ed.2d 207 (1984), the pretrial detainment of juveniles, which depended on a finding that there is a “serious risk” that the juvenile if released would commit a crime prior to his next court appearance, was challenged on the grounds that “the risk of erroneous and unnecessary detentions [wa]s too high ... because the standard for detention [wa]s fatally vague.” Id. at 278, 104 S.Ct. at 2417, 81 L.Ed.2d at 226. The contention was that “it is virtually impossible to predict future criminal conduct with any degree of accuracy,” thereby undermining, if correct, the Court’s conclusion that detention of juveniles on the basis of future dangerousness “serves legitimate regulatory purposes.” Ibid. The Court responded by noting that “our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct.” Ibid.

We note further that quite obviously none of these standards or classes suggests the court must make a finding of likelihood of reoffense, for the Legislature did not impose either Tier Two or Tier Three notification only when it was probable that reoffense would occur, but rather only when the risk — however quantified— was sufficient to warrant such notification. The quality of the offense — a sex offense — undoubtedly led to this legislative conclusion that notification was warranted even when reoffense was not probable, and that legislative conclusion is unassailable in any proceedings before the court. Therefore the probability of reoffense on the part of moderate or high-risk offenders is not the issue before the court, but rather the relatively greater risk of reoffense compared either to the low-risk offender class or the moderate-risk offender class.

In these proceedings the prosecutor, or someone designated by the prosecutor, shall, if offered as such, be presumptively accepted by the court as an expert on the risk of reoffense. We do not mean to diminish the court’s power to reject that person as an expert, but simply note that a fair degree of experience with sex offenders and their characteristics, along with adequate knowledge of the research in this area — much of which is conflicting in its conclusions — should ordinarily be regarded as sufficient. The procedures we have adopted are intended to assure fairness in implementing the law; they are not to thwart its implementation, and they should not be converted into long drawn-out contests between experts. Certainly we do not foreclose or discourage the production of expert testimony on both sides, but we grant to the court substantial power, beyond that permitted or used in ordinary litigation, to allow, reject, control, and limit expert testimony in order to render these proceedings administratively effective, practical, and timely. We would anticipate that in many of these cases the proceedings would last no more than several days.

As for the manner of notification, the limitations set forth in our opinion are mandatory. For Tier Two notification, only those community organizations that own or operate an establishment where children gather under their care, or where women are cared for, shall qualify, and only those that are “likely to encounter” the offender as discussed in connection with Tier Three. The notice that goes out to such organizations shall specifically direct them not to notify anyone else, that being the acknowledged intent of the statute as interpreted by the Attorney General, an interpretation with which we agree. Organizations concerned with the welfare of children and women, but not having them under their custody or care, do not qualify, and as we understand the Guidelines, the Attorney General does not take a different position. There shall be no automatic inclusion of an organization simply because it is “registered.” Tier Two notification can easily amount to the same notification as required for Tier Three if these limitations are not observed.

That dangers exist beyond those organizations “likely to encounter” the offender is obvious, for the offender may travel many miles before, he or she offends, ■ suggesting the possibility that greater safety would be assured if every organization in the state were notified. That is not at all the intent of the Legislature, the law having struck the balance between the need for safety and individual rights through the “likely to encounter” standard. The word “likely” shall be taken in its usual sense: to mean not “possibly” but “likely,” not in the sense of “probably” but rather in the sense of “having a fair chance to encounter.”

As for the manner and extent of notification under Tier Three, “likely to encounter” clearly includes the immediate neighborhood of the offender’s residence and not just the people next door. It presumably would include (since Tier Three includes Tier Two notification) all schools within the municipality, depending on its size, and we see no reason why it should not include schools and other institutions in adjacent municipalities depending upon their distance from the offender’s residence, place of work, or school. We find the Attorney General’s Guidelines, however, more extensive in the Tier Three proposed notification than authorized by statute. The statute confines public notification under Tier Three to “means ... designed to reach members of the public likely to encounter the person registered,” and it is that standard with which the Attorney General’s Guidelines must comply. We do not understand how “community meetings, speeches in schools and religious congregations” conform to the statutory mandate. Those are means apparently designed to inform the entire community of the offender’s presence, rather than means designed, as the statute requires, “to reach members of the public likely to encounter the person registered.” They are means that exceed the statutory standard and are therefore not permitted.

We do not automatically exclude, however, notification to a group carefully selected to include only those “likely to encounter” the offender. There may be instances where the administrative difficulties of notification will warrant such a procedure. Furthermore, in certain instances the members of the public likely to encounter the offender may include children at a nearby school in which case it may be appropriate for the parents of such children to be notified, as well as the children, and that notification may most effectively be given at a meeting at the school that could include a description of safety measures that would enable the parents to reinforce whatever instructions the children may have been given by the school. Such groups, clearly defined and exclusively limited to those likely to encounter the offender, are quite different from the implied makeup of groups that will attend “community meetings, speeches in schools and religious congregations.” Meetings of that kind are clearly inconsistent with the legislative direction that allows notification only to those likely to encounter the offender.

The factor that will ordinarily be critical to a determination of “likely to encounter” is geography — how close is the institution or organization, in the case of Tier Two notification, to the offender’s residence or place of work or school. In some municipalities, not every institution or organization that would otherwise qualify for notification may be close enough to warrant same, but in some cases, as suggested above, institutions or organizations in other municipalities may be close enough. The same observations can be made for Tier Three notification. We do not attempt to define the area around the offender’s residence or place of work or school that may be included within the notification process, and assume it may differ from one locale to another. Depending upon the particular offender, factors other than geography may be considered if they are relevant to the offender’s likely whereabouts, such as an offender’s proclivity for certain locations, and geographic considerations may be affected by the nature of the offender’s characteristics and the institution in question, e.g., a repetitive and compulsive pedophile and a large elementary school.

We assume that the media will exercise responsibility in this matter in recognition of the critical societal interest involved. In particular, we assume that the media will not knowingly frustrate the explicit legislative goal of confining notification to those likely to encounter the offender. In other settings, all sectors of the media have voluntarily and on their own initiative, where they thought the public interest was served, consistently restrained their articles, coverage and reporting, e.g., withholding the name of rape victims. We do not believe that the response of the media to this law, whatever it may be, can determine or affect its constitutionality, but clearly there is no occasion to pass on that issue for to do so assumes conduct on the part of the media that should not be attributed to it hypothetically in this litigation, and, we believe, unfairly. Whether such feared reaction would affect the legislative policy judgment in the future is not a matter for us to determine. We note only that uncertain assumptions of inappropriate and destructive future behavior on the part of either the media or the public do not, and should not, govern judicial constitutional rulings.

We suggest — not as a measure to prevent publication for we believe that only the voluntary restraint of the media will accomplish that, or to prevent excessive notification by members of the public — that the Legislature consider adopting a statute similar to those now in place that would impose criminal penalties on those specifically charged with keeping the information confidential, if they exceed the bounds of the confidentiality restriction. See N.J.S.A. 2A:4A-60 (unauthorized disclosure or use of juvenile record is disorderly persons offense); N.J.S.A 2A:82-46 (unauthorized disclosure of identity of child sexual assault victim is disorderly persons offense). We note that other notification statutes apparently sometimes have such sanctions for violation of confidentiality. We note further the First Amendment problems involved in any attempt either to restrain or punish the exercise of free speech where the actor is an ordinary member of the public. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (holding that state may not constitutionally punish a television station for broadcasting the name of a seventeen-year old rape-murder victim when the victim’s name appeared in court records open to the public); Laurence H. Tribe, American Constitutional Law 965 (2d ed. 1988) (stating that “once someone outside government acquires official information, the government cannot, absent an extraordinary showing, penalize its publication”). The need for community education in preserving confidentiality is apparent where that confidentiality is either implicit in the statute or explicit in the Guidelines. The conduct of the media and of community leaders, including public officials, may to a great extent determine the success or failure of such efforts.

To the extent the judiciary is involved in review of prosecutorial decisions, we will attempt to assure uniformity of treatment by providing for the appointment, by the Assignment Judge, of one judge in the vicinage (who may be the Assignment Judge) to handle all applications for review. In addition, a three-judge panel will be named to review all matters that have been concluded for the purpose of determining the extent of disparity of treatment, as well as to design a bench manual, if that seems desirable, to help guide all of the reviewing judges throughout the state in their determinations, all in accordance with this opinion. Finally, given the in camera nature of the proceedings, we will take whatever steps are needed to keep the public informed about the implementation of these laws through annual reports by the Administrative Office of the Courts. Those reports shall describe every application in opposition to Tier Two or Tier Three classifi-. cation, along with the proposed manner of notification, in as much detail as possible — without disclosing the identity of the offender, or factors that might lead to such identification — the nature of the proofs presented, the opposing proofs, the determination of the trial court, and its reasons. We hope thereby to avoid the possibility of concern on the part of the public that this law is not being implemented in accordance with the legislative intent.

We have committed to the courts the obligation of providing procedural due process. We do not suggest, however, that entities other than the courts could not constitutionally afford the process required to meet the constitutional obligation. For instance, the Legislature could designate or create an appropriate agency to oversee Tier classifications and manner of notification, so long as the basic elements of due process, such as notice, an opportunity to be heard and to confront witnesses, are provided. Such an agency might better promote uniformity in these matters than would the courts. We do not suggest one is better than the other but simply want to note that our decision does not prevent further legislative action in this area.

The complexity of the social problem addressed by the Legislature in Megan’s Law is clear. The recidivism of a repetitive and compulsive sex offender is almost intractable. The problem of this form of recidivism poses an enormous challenge to the Legislature to devise a solution generally designed to remedy the problem without unnecessarily penalizing those who are its source. Those concerns — to devise a remedy without punishing — are of a constitutional dimension, involving both ex post facto and double jeopardy provisions. Coupled with constitutional considerations of due process, which involve protectible liberty interests, those concerns impel us to interpret the statute and revise its Guidelines to assure their constitutional application. To that end, we have determined implementation of the statute requires procedural standards while assuring that the Legislature’s remedial objectives are effectuated, and to that end, its punitive effects reduced to a necessary minimum consistent with the legislative goal.

Y

Challenges Based on the Claim, that the Laws Constitute Punishment

We note at the outset those cases that have already passed on challenges to similar laws and to these laws. Registration statutes for sex offenders have almost universally been sustained in the face of attacks similar to those made here, State v. Noble, 171 Ariz. 171, 178, 829 P.2d 1217, 1224 (1992); People v. Adams, 144 Ill.2d 381, 163 Ill.Dec. 483, 487, 581 N.E.2d 637, 641 (1991); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1068-69 (1994), including some recent cases involving the statutes now before us, Artway v. Attorney General of N.J., 876 F.Supp. 666, 688 (D.N.J. 1995); Doe v. Poritz, 288 N.J.Super. 372, 384, 661 A.2d 1335, 1341 (Law Div.1995); Roe v. Poritz, No. UNN-L-1107-95, slip op. at 12 (Law Div.1995) (declining to grant temporary restraining order against enforcement of registration provision and Tier One notification); the exceptions are rare, Rowe v. Burton, 884 F.Supp. 1372, 1385 (D.Alaska 1994) (concluding that Registration Act would likely be unconstitutional because it provided for public notification); In re Reed, 33 Cal.3d 914, 191 Cal.Rptr. 658, 664-65, 663 P.2d 216, 222 (1983). Community notification laws are not as common as registration laws,⁹ although the pace of recently adopted ones suggests they may become common, and we are aware of only five cases litigating them: they were upheld in Judge Wells’ trial court decision in this case, and in Ward, supra, 869 P.2d at 1072; similar notification laws were ruled unconstitutional in State v. Babin, 637 So.2d 814, 824 (La.Ct.App.1994), writ denied, 644 So.2d 649 (La.1994), and the very law before us was ruled unconstitutional in Artway, supra, 876 F.Supp. at 692, with the finding of probable invalidity for interlocutory injunction purposes in Diaz v. Whitman, No. 94-, slip. op. at 9 (D.N.J. January 3, 1995).

Our discussion and determination rely almost exclusively on federal cases, although plaintiffs constitutional challenge is based on both the State and Federal Constitutions. We know of no relevant New Jersey cases on any of these issues, except for some language in related matters, State v. Ulesky, 100 N.J.Super. 287, 241 A.2d 671 (Monmouth County Ct.1968) (holding narcotics registration ordinance did not violate either the Bill of Attainder or Ex Post Facto Clause of the State Constitution), rev’d on other grounds, 54 N.J. 26, 252 A.2d 720 (1969), and Hazelton v. Murray, 21 N.J. 115, 121 A.2d 1 (1956) (holding constitutional in face of ex post facto challenge law barring collection of funds by union officers or agents who had been convicted of certain crimes), and for general language in cases dealing with the constitutional obligation to honor the plea bargain, e.g., State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989); State v. Salentre, 242 N.J.Super. 108, 576 A.2d 36 (App.Div.1990). No suggestion of merit has been made that New Jersey’s Constitution in relation to these challenges (as distinguished from the procedural due process challenge) should be interpreted in any way different from the Federal Constitution.¹⁰

Our review of the law leads to the following conclusions: a statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose: an intent to punish.

These are towering constitutional provisions of great importance to individual dignity, freedom, and liberty. They were adopted in England and in this country to protect against real evils: to protect against the worst, and lesser, punishments, most of them obvious on their face. The search today for hidden intent is appropriate; the scrutiny of effects in order to unmask intent and purpose, even to attribute purpose, is similarly appropriate. But while the role of these constitutional provisions as protectors of individual rights must always be fully enforced, care should be exercised not to convert them into obstacles that prevent the enactment of honestly-motivated remedial legislation by subjecting laws to tests unsuited to the underlying purpose of these constitutional provisions. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). These provisions were aimed at arbitrary and unjust actual punishment, intentionally inflicted, and their application should be guided accordingly. This does not mean that only those laws that clearly and intentionally inflict substantial punishment are to be condemned, but that the most searching inquiry is required before condemning honest laws that are free of punitive intent and designed to protect society.

Before tracing the course of the development of these rules, we deal at the outset with plaintiffs two main contentions, for they help explain the relevance of some of the decisional history. Plaintiff asserts, correctly, that deterrence and retribution are the main characteristics of criminal sanctions and, not correctly, that any law or sanction having either of those characteristics is to that extent punitive, and the sanction, proceeding, or law, therefore constitutes “punishment” for constitutional purposes, even if only in part. The contention here is that the Registration and Notification Laws not only protect against crime but deter it: both for the potential reoffender who must register and face notification, as well as for those who might otherwise commit a first sex offense but for the potential impact of registration and notification. The second contention is that government is responsible for the potential impacts that may result from notification, whether they were intended or not, and that they may be so severe as to constitute punishment.

We deal more fully with both of those contentions in our treatment of this subject, but note here that neither of those consequences invalidates a law whose sole purpose is remedial and whose provisions are designed solely to achieve that purpose; that except for the recent decisions mentioned above, no ease has ever held that the inevitable but unintended deterrent impact of a regulatory law by itself renders it punitive or that non-governmental reaction to that law does. We assume that if the legislative purpose was to deter sex offenders, the law would be invalid; and we have no doubt that if the government ordered punishment, the law would be invalid. Neither, however, is the case here.

In the ex post facto area, careful reading of some of the cases is necessary to avoid misunderstanding the rule that a law solely remedial does not violate this constitutional provision simply because it may have inevitable deterrent consequences. Some ex post facto cases deal with a different section of the constitutional provision and their results cannot be transported to the section involved in this case — prohibiting a statute that inflicts punishment in addition to that imposed by law at the time of the offense. For example, in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (overruling Kring v. Missouri, 107 U.S. 221, , 2 S.Ct. 443, 455, 27 L.Ed. 506, 511 (1883)), a law was held not to violate the Ex Post Facto Clause even if its passage, after defendant’s commission of the crime, would result in his execution which would not have occurred without it. The section of the ex post facto law involved in both Collins and Kring, however, prohibited modifications of the law after commission of the offense that would have the effect of increasing the substantive aspects of a defense to the crime charged, Collins’ holding (contrary to Kring) being that repeal of a procedural provision that would have prevented defendant’s execution did not violate that provision of the constitutional clause. Certainly the Collins ease does not in any way mean that under the “additional punishment” provision of ex post facto, remedial purposes will justify any impact — including death — so long as it is a consequence of the law’s remedial purpose. Similarly, those laws that affect the length of a prisoner’s term, or are likely to affect it, passed after commission of the crime, obviously constitute “additional punishment” — no one ever believed or contended that a Legislature that concluded society would be better off if those guilty of burglary were imprisoned for twenty years rather than ten could impose that additional punishment on those presently in prison serving their ten-year term on the grounds that the Legislature’s intent was remedial. Similarly, laws changing qualifications for parole consideration that are likely to result in added time in prison, or that eliminate “good time” as a credit against a term of imprisonment, and that are practically certain to result in added time in prison, violate the “additional punishment” provision of the Ex Post Facto Clause. Imprisonment is a very special deterrent consequence, and in the ex post facto context, as well as in double jeopardy and other contexts, it is conclusively punishment. California Dep’t of Corrections v. Morales, — U.S. —, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Similarly, even though the cases are instructive for. purposes of defining punishment, we do not read Schall, supra, 467 U.S. at 253, 104 S.Ct. at 2403, 81 L.Ed.2d at 207, and United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which upheld the constitutionality of pretrial imprisonment in the face of a substantive due process attack, as suggesting imprisonment might not be punishment for ex post facto or double jeopardy purposes.

A

The parties and all amici are in general agreement that the laws’ validity, measured against the various constitutional attacks, depends on whether they inflict punishment. The determination of punishment has ordinarily consisted of several components. An initial inquiry is whether the legislative intent was regulatory or punitive: if the latter, that generally is the end of the inquiry, for punishment results; if the former, the inquiry changes to whether the impact, despite the legislative intent to regulate, is in fact punitive, usually analyzed in terms of the accepted goals of punishment, retribution and deterrence. Despite some ambivalent language, a punitive impact — one that effects retribution or accomplishes deterrence — renders the law or the specific provision of the law that is attacked, punishment, but only if the sole explanation for that impact is a punitive intent. In other words, the law is characterized as regulatory in accordance with the legislative intent even if there is some punitive impact, if that impact is simply an inevitable consequence of the regulatory provisions themselves. The law is characterized as punitive only if the punitive impact comes from aspects of the law unnecessary to accomplish its regulatory purposes — that is, if the law is “excessive,” the excess consisting of provisions that cannot be justified as regulatory, that result in a punitive impact, and that, therefore, can only be explained as evidencing a punitive intent.

Our starting point will be the first case defining the scope of the Ex Post Facto Clause, Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), the clause on which plaintiff most strenuously bases his claim. In Colder, the Court held that a Connecticut law, enacted after a civil decree of a probate court and allowing an appeal where none had previously been allowed, did not violate the constitutional prohibition, since that prohibition applied only to crimes, pains, and penalties that were affected by subsequent laws and not to civil matters like the probate proceeding. One of the categories of law within the proscription of the clause is a “law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Id. at 390, 1 L.Ed. at 650.¹¹ The critical role of punishment in triggering the Ex Post Facto Clause was duplicated thereafter in other cases interpreting the prohibition against double jeopardy and excessive fines, the determination of what constitutes punishment substantially similar for each.

There was a movement away from punishment as the critical element in ex post facto analysis. See Kring, supra, 107 U.S. at 235, 2 S.Ct. at 455, 27 L.Ed. at 511 (Colder definition not exclusive, the prohibition triggered not only by laws imposing additional punishment but those that “ ‘alter[ ] the situation of a party to his disadvantage’ ”); Thompson v. Utah, 170 U.S. 343, 352, 18 S.Ct. 620, 623, 42 L.Ed. 1061, 1067 (1898) (ex post facto provision triggered by laws that deprive one of “a substantial right involved in his liberty”). That movement was not halted until the Court’s decision in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), which held that the Colder definition was exclusive, that “disadvantage”-and deprivation of “a substantial right” involved in liberty were not the test, and restored punishment as the sole measuring rod, overruling Kring and Thompson in the process. Even during those intervening years, however, punishment was the central “fact” determinative of the outcome of challenges to laws based on these constitutional provisions. It still is today.

In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958), the Court invalidated revocation of citizenship on the grounds of military desertion, the plurality opinion holding that it was cruel and unusual punishment. The initial question was whether the sanction constituted punishment at all, determined in part by reference to ex post facto cases dealing with the same issue. Id. at 95, 78 S.Ct. at 595, 2 L.Ed.2d at 639.

In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment — that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature.

[Id at 96, 78 S.Ct. at 595-96, 2 L.Ed.2d at 639-640 (footnotes omitted).]

Having concluded from its analysis of the statute that there was “no other legitimate purpose that the statute could serve” other than “simply to punish him,” the Court concluded that taking away citizenship constituted punishment, id. at 97, 78 S.Ct. at 596, 2 L.Ed.2d at 640, and, in that case, cruel and unusual punishment. Id. at 103, 78 S.Ct. at 599, 2 L.Ed.2d at 644.

In De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960), a New York law that prohibited unions from collecting dues if any officer or agent of the union was a convicted felon was attacked on ex post facto grounds. The claim was that the felon, convicted before the passage of the law, was subjected to additional punishment because of the law’s impact in causing the union to suspend him from his position as an officer in order to enable it to continue to collect dues, the response being that the law was regulatory, its only goal being to cleanse the unions that controlled the waterfront of criminal control. In ruling that there was no punishment the Court said:

The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the property qualifications for a profession. No doubt is justified regarding the legislative purpose of § 8. The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront, and for the effectuation of that scheme it became important whether individuals had previously been convicted of a felony.

[Id, at 160, 80 S.Ct. at 1155, 4 L.Ed.2d at 1120 (citation omitted).]

The “restriction of the individual” was the alleged punishment. However, the Court held that since it was not “the legislative aim ... to punish that individual for past activity,” and since the restriction was a “relevant incident to a regulation of a present situation,” no punishment was involved. In other words, where the alleged punitive effect is not intended as such, but rather is an inevitable consequence of a law that is clearly regulatory, there is no punishment. To the same effect, in Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), where an unusually harsh law was alleged to violate a different aspect of the Ex Post Facto Clause by making past conduct a crime, the majority quoted the plurality language of De Veau, id. at 614, 80 S.Ct. at 1374-75, 4 L.Ed.2d at 1446, and noted that “[w]here no persuasive showing of a purpose ‘to reach the person, not the calling,’ has been made, the Court has not hampered legislative regulation of activities within its sphere of concern, despite the often-severe effects such regulation has had on the persons subject to it.” Id. at 616, 80 S.Ct. at 1375, 4 L.Ed.2d at 1447 (footnote and citation omitted).

The federal law permitting pretrial detention of those accused of certain crimes on the basis of future dangerousness was sustained in the face of a substantive due process claim in Salerno, supra, 481 U.S. at 739, 107 S.Ct. at 2095, 95 L.Ed.2d at 697. Although none of the constitutional clauses aimed at restraining government’s power to punish was involved, the question whether such detention constituted punishment was critical, for the government “never argued that pretrial detention could be upheld if it were ‘punishment.’” Id. at 746, 107 S.Ct. at 2101, 95 L.Ed.2d at 708. Finding that “Congress ... perceived pretrial detention as a potential solution to a pressing societal problem” and that “the incidents of pretrial detention [are not] excessive in relation to the regulatory goal Congress sought to achieve,” id. at 747, 107 S.Ct. at 2095, 95 L.Ed.2d at 709, the Court sustained the law, despite its obvious severe punitive consequences.

To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on “ “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’ ”

[Id. at 747, 107 S.Ct. at 2101, 95 L.Ed.2d at 708 (citations omitted).]

B

One of the points urged by plaintiff, and strongly supported by amici, is that any punitive impact, no matter how minimal, no matter how clearly the product of a provision otherwise solely remedial, standing alone, compels the conclusion that punishment has been inflicted for ex post facto purposes (and presumably for double jeopardy and excessive fine purposes) regardless of all other considerations. It is argued not only that the registration and notification provisions amount to punishment, but that even the slightest degree of deterrent effect renders them punitive under United States Supreme Court cases. The argument notes the incontrovertible fact that registration and notification will have some deterrent effect, even if only, in the case of registration, because those realizing their presence in the community is known to the police may be less likely to reoffend. This somewhat extreme position arises from language in numerous cases that arguably supports it, but that on fair examination says nothing of the kind. We reject this contention, as well as the reading of the cases asserted to compel its conclusion.

The language that has caused the problem appears to have had its origin in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), a double jeopardy case in which monetary sanctions were sought under the Civil False Claims Act subsequent to defendant’s criminal conviction for the same false claims, the contention being that the monetary sanctions constituted multiple punishment.¹² The question, as stated by the Court, was “whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause.” Id. at 446, 109 S.Ct. at 1901, 104 L.Ed.2d at 500-01.

We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554 [567] 9 L.Ed.2d 644 (1963) (these are the “traditional aims of punishment”). Furthermore, “[r]etribution and deterrence are not legitimate nonpunitive governmental objectives.” Bell v. Wolfish, 441 U.S. 520, 539, n 20, 99 S.Ct. 1861 [1874, n. 20] 60 L.Ed.2d 447 (1979). From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. Cf. Mendoza-Martinez, 372 U.S., at 169, 83 S.Ct. 554 [at 568], 9 L.Ed.2d 644 [at 661-62] (whether sanction appears excessive in relation to its nonpunitive purpose is relevant to determination whether sanction is civil or criminal). We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

[Id. at 448-49, 109 S.Ct at 1902, 104 L.Ed.2d at 502.]

The context of the case provides a simple explanation for the need to formulate a rule: a statutory penalty under the False Claims Act might be regarded as either remedial or punitive. Ultimately, the issue was resolved by noting that the amount of the civil penalty compared to the government’s loss constituted “a sanction overwhelmingly disproportionate to the damages [defendant] has caused.” Id. at 449, 109 S.Ct. at 1902, 104 L.Ed.2d at 502. It was a civil penalty that bore “no rational relation to the goal of compensating the Government for its loss, but rather appear[ed] to qualify as ‘punishment’ in the plain meaning of the word.” Ibid. In other words, to the extent that the penalty exceeded the government’s loss, it served no purpose other than to punish.

That context gives the language quoted above, perhaps otherwise confusing, a fairly clear significance. The “civil sanction” could not “fairly be said solely to serve a remedial purpose” given that the remedial purpose was to compensate the government for its costs. It went so far beyond that need as to be characterized as “overwhelmingly disproportionate,” and the case itself was described as “rare.” Ibid. The excess over the amount necessary to compensate the government could “only be explained as also serving either retributive or deterrent purposes.” Given the legitimate goal of the statute, there simply was no other explanation for it, and based on that fact, it constituted punishment.

The language was never meant to apply to a provision that is wholly remedial in purpose but has, for example, some deterrent impact, but only to a sanction, or that part of a sanction, that may fairly be characterized “only as a deterrent or retribution.” Ibid. The Court’s remedy bears this out, for it remanded the matter to the trial court to determine how much of the civil penalty exceeded what was necessary to compensate the government and to eliminate that portion, assuming the government could not justify the entire amount.

The use of the word “serve” is also clarified by the context of the case. Standing alone, “a civil sanction that cannot fairly be said solely to serve a remedial purpose” might be thought to mean that a provision that is clearly remedial in intent and effect somehow becomes punitive because the very same provision has some deterrent impact, ie., it is not solely remedial because it does not “solely serve a remedial purpose.” But what the Court meant by “serve” is very much tied to the word “purpose,” in the sense of an intended goal, as seen when the Court very shortly thereafter refers to the difficulty of determining the precise dollar figure at which “a civil sanction has accomplished its remedial purpose of making the government whole, but beyond which the sanction takes on the quality of punishment.” Halper, supra, 490 U.S. at 450, 109 S.Ct. at 1902, 104 L.Ed.2d at 502-03.

We do not mean to imply that the foregoing totally clarifies the intent of the languáge or eliminates any ambiguity. Nonetheless, we believe that the language itself provides a fair indication that mere impact of a provision was not being referred to by the use of the phrase “serve the purpose of punishment.” Had impact been the critical factor, regardless of design and intent, the quote would have read, “from these premises, it follows that a civil sanction that cannot fairly be said solely to have a remedial impact, but rather also having either retributive or deterrent impacts, is punishment.” When a sanction is tested differently as one “that cannot fairly be said solely to serve a remedial purpose,” the connotation is that there is a purpose to the provision, and the test is whether that is what the provision is meant to achieve, that is what it “serves.” When it is said that the sanction “can only be explained as also serving either retributive or deterrent purposes,” the use of the word “explained” clearly suggests an examination of something more than the impact; it suggests the question of whether the impact is simply an inevitable consequence of the remedial provision, or whether it is such that the only explanation is another purpose to the sanction, a punitive purpose. If the punitive purpose must be so clear that the sanction can be characterized as punishment only if, and to the extent that, it may not fairly be characterized as remedial and can only be characterized as a deterrent or retribution, that means that the sanction is being examined not to see if there is some incidental punitive impact that is an inevitable consequence of its remedial purpose and function, but whether punishment is “the purpose [ ] that the [sanction] may fairly be said to serve.” Id. at 448, 109 S.Ct. at 1901, 104 L.Ed.2d at 501. The language does not suggest that what is being called for is something akin to painstaking chemical analysis or sophisticated spectrography to find a trace of deterrence or retribution.

Although we believe the language of Halper to be fairly clear, the facts and results of cases following Halper better explain its meaning. The quoted Halper language appears again in Austin v. United States, 509 U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), there in response to the government’s claim that the statutory in rem civil forfeiture did not impose punishment, but rather was remedial. The forfeiture proceeding followed defendant’s conviction for possession and distribution of two grams of cocaine and resulted in the loss of his mobile home, where the cocaine had been kept, and his auto body shop, where the sale took place. The defendant claimed that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment, the issue before the Court being whether this forfeiture was a “fine” at all, in other words whether the Excessive Fines Clause was applicable at all, and if it was, the question of its excessiveness would thereafter have to be determined. The Court’s disposition of the case and its analysis of the Halper language make it clear that the purpose and the intent of the civil sanction is the touchstone that determines the sanction’s characterization as either remedial or punitive, rather than simply its impact.

All members of the Court were of the view that the question of whether the forfeiture was a fine depended on whether or not it was “punishment,” and the Court held that it was. Going beyond the specific forfeiture in the case before it, the majority’s analysis led it to the conclusion that all forfeitures under the statute involved constituted punishment regardless of the underlying crime and the value of the property forfeited, and regardless of the relationship between the two in terms of the connection between the property and the crime. It based its decision on the clear purpose and intent of Congress to impose punishment. Noting the “historical understanding of forfeiture as punishment, the clear focus of [the statute] on the culpability of the owner”— only culpable owners were subject to forfeiture, the statute expressly exempting “innocent owners” — “and the evidence that Congress understood those provisions as serving to deter and to punish,” id. at -, 113 S.Ct. at 2812, 125 L.Ed.2d at 505, the Court concluded the forfeiture constituted punishment. Proof of the congressional intent was impressive; the innocent-owner defense revealed an intent to punish only those involved in drug trafficking, and the legislative history “confirm[ed] the punitive nature” of the statute, the congressional report stating “ ‘that the traditional criminal sanctions of fine and imprisonment are inadequate to deter or punish the enormously profitable trade in dangerous drugs.’ ” Id. at -, 113 S.Ct. at 2811, 125 L.Ed.2d at 504 (citation omitted).

The Halper language was used by the Court in response to the government’s claim that the statute was remedial because it removed the “ ‘instruments’ of the drug trade [the auto body shop and the mobile home] ‘thereby protecting the community from the threat of continued drug dealing,’” and generated revenues through the forfeited assets “to compensate the Government for the expense of law enforcement activity and for its expenditure on societal problems such as urban blight, drug addiction, and other health concerns resulting from the drug trade.” Ibid, (citation omitted).¹³ The Court rejected both contentions on their merits, i.e., its language makes it clear that it found no remedial purpose whatsoever. Id. at -, 113 S.Ct. at 2811-12, 125 L.Ed.2d at 504-05.

Furthermore, the Court noted, and fundamentally so, that even if it assumed that these statutory provisions “serve[d] some remedial purpose, the [g]overnment’s argument must fail,” for a “ ‘civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.’” Id. at -, 113 S.Ct. at 2812, 125 L.Ed.2d at 505 (quoting Halper, supra, 490 U.S. at 448, 109 S.Ct. at 1902, 104 L.Ed.2d at 502). Austin thus uses the Halper language not for its usual significance — that a remedial statute may be said to impose punishment if, despite its remedial purpose, it is designed in part as punishment — but rather to demonstrate a fortiori that a statute found to be punitive, to have punishment as its goal, is not transformed into a remedial statute simply because it may also have some remedial purpose.

Essentially the same question involved in Austin was determined in United States v. $405,089.23, 33 F.3d 1210 (9th Cir.1994), a civil forfeiture action following criminal conviction for the same illegal drug activities. The only difference is that the forfeiture action was claimed to violate the Double Jeopardy Clause, rather than the Excessive Fines Clause. Noting prior decisions that fairly clearly regard such forfeiture actions, including the sanction, as totally civil, largely because of the label Congress had always affixed to it, the court concluded that Halper had changed the law and that Austin had confirmed that change in the civil forfeiture context. After quoting the usual Halper language, and referring to the Supreme Court’s decision in Austin, the Court of Appeals said that “[j]ust last year [the Court] reaffirmed its new found wisdom, emphasizing again that a sanction which is designed even in part to deter or punish will constitute punishment, regardless of whether it also has a remedial purpose.” Id. at 1219 (emphasis added). Reinforcing the fact that the purposes intended to be served must be assessed, the Court of Appeals, summarizing Austin, said that “because of ‘the historical understanding of forfeiture as punishment’ there is a strong presumption that any forfeiture statute does not serve solely a remedial purpose,” that “where such a statute focuses on the culpability of the property owner by exempting innocent owners or lienholders, it is likely that the enactment serves at least in part to deter and punish guilty conduct,” and finally, that “where Congress has tied forfeiture directly to the commission of specified offenses, it is reasonable to presume that the forfeiture is at least partially intended as an additional deterrent to or punishment for those violations of law.” Id. at 1221.

More recently, the Court of Appeals for the Seventh Circuit rejected an ex post facto claim based on debarment proceedings— the defendant was permanently prohibited from aiding in drug approval applications — following defendant’s conviction for bribing Federal Drug Administration officials in order to obtain such approvals, the debarment based on a statute passed after that conviction. Bae v. Shalala, 44 F.3d 489 (7th Cir.1995). The claim was that the debarment proceedings constituted additional punishment prohibited by the Ex Post Facto Clause. The Court of Appeals observed:

A civil sanction that can fairly be said solely to serve remedial goals will not fail under ex post facto scrutiny simply because it is consistent with punitive goals as well. A civil sanction will be deemed to be punishment in the constitutional sense only if the sanction “may not fairly be characterized as remedial, but only as a deterrent or retribution.”

[Id. at 493 (quoting Halper, supra, 490 U.S. at 449, 109 S.Ct. at 1902, 104 L.Ed.2d at 502).]

Emphasizing the point, the Court of Appeals noted that “[t]he Supreme Court has consistently required ‘unmistakable evidence of punitive intent’ to characterize a sanction as punishment.” Id. at 494.

Considering the Act’s focus to be “exclusively on its remedial purpose” and its provisions to be aimed solely at achieving the “ ‘need to establish procedures to bar individuals who have been convicted of crimes pertaining to the regulation of drug products from working for companies that manufacture or distribute such products,’ ” the court concluded, “[wjith these objective goals, the [Act] can fairly be said solely to serve a remedial purpose.” Id. at 493 (emphasis added and citations omitted). As the court stated, “Without question, the GDEA serves compelling governmental interests unrelated to punishment. The punitive effects of the GDEA are merely incidental to its overriding purpose to safeguard the integrity of the generic drug industry while protecting public health.” Ibid.

In United States v. Hudson, 14 F.3d 536 (10th Cir.1994), a criminal prosecution for illegal banking activities was found not to constitute double jeopardy, the claim being that a previous administrative sanction partially debarring the defendants from further banking activities constituted punishment. The Court of Appeals carefully noted “that a determination that a sanction is at least in part punishment requires that it must be explained as also serving as a deterrent or retribution, not merely that it may be so explained.” Id. at 540. The Court of Appeals thus came to grips with what is meant when it is said that a “particular remedial sanction can only be explained as also affecting deterrence or retribution.” It means that the only possible explanation for the sanction, at least in part, is that it must have been intended to effect punishment.

That reading is confirmed at the end of the Court’s consideration of this aspect of the matter when it said,

we are convinced that the government’s nonparticipation sanction was solely designed to protect the integrity of the banking industry by purging the system of corrupt influences. We therefore hold that [appellants’ irrevocable ban from further participation in banking activities is solely remedial even though it carries the sting of punishment in the eyes of [appellants.

[Id. at 542 (emphasis added).]

What counts, therefore, is the purpose and design of the statutory provision, its remedial goal and purposes, and not the resulting consequential impact, the “sting of punishment,” that may inevitably, but incidentally, flow from it.

Lastly, in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943), a civil penalty following criminal conviction was held not to constitute “punishment” despite the obvious deterrent impact of the penalty. Though that deterrent impact was not explicitly identified, and the case decided on the same basis as those mentioned above (the remedial intent and effect of the civil penalty was the deciding factor, namely, compensating government for the costs and damages it suffered as a result of defendant’s collusive bidding practices) from the point of view of one contemplating such a crime there was not only the prospect of the criminal sanctions explicitly provided, but a civil penalty of double the government’s damages plus $2,000 for each act, which in that case amounted to a penalty of $315,000 paid to make the government whole for the actual $101,500 of damages. Id. at 540, 63 S.Ct. at 382, 87 L.Ed. at 447.

The Hess case involved real deterrence, not just the minimal amount that is contended here to compel the conclusion that a sanction constitutes “punishment.” Despite that deterrent impact, not only did the Court hold there was no punishment and therefore no double jeopardy, but the very case (Halper) that originated the language leading to this kind of contention approved of and justified the result. See Halper, supra, 490 U.S. at 444-45, 109 S.Ct. at 1899-1900, 104 L.Ed.2d at 499. The issue before the Court in Hess, as recognized in Halper, was not whether the proceeding was a second prosecution for the same offense, but rather whether it involved additional punishment. As the Halper Court noted: “Because the defendants in Hess had been punished in a prior criminal proceeding ..., the Court faced a further double jeopardy problem: whether (as in the instant case) the second sanction was barred because it constituted a second punishment.” Id. at 444, 109 S.Ct. at 1899-1900, 104 L.Ed.2d at 499 (emphasis added). Hess held that the sanction did not constitute “punishment,” even though “ ‘[pjunishment in a certain and very limited sense, may be the result of the statute before us so far as the wrong-doer is concerned.’ ” Hess, supra, 317 U.S. at 551, 63 S.Ct. at 388, 87 L.Ed. at 453.

The foregoing eases, concluding there was no punishment in the constitutional sense where there was clearly a deterrent impact, demonstrate the invalidity of plaintiffs contention that even the slightest degree of deterrent impact, intended or otherwise, renders a sanction punishment. Other cases recognize this somewhat more explicitly in their comments about the subject. See, e.g., Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. -, - n. 14, 114 S.Ct. 1937, 1945 n. 14, 1947, 128 L.Ed.2d 767, 777 n. 14, 779 (1994) (stating that “whether a sanction constitutes punishment is not determined from the defendant’s perspective, as even remedial sanctions carry the ‘sting of punishment,’ ” and that “while a high tax rate and deterrent purpose lend support to the characterization of the drug tax as punishment, these features, in and of themselves, do not necessarily render the tax punitive”) (emphasis added); Manocchio v. Kusserow, 961 F.2d 1539, 1542 (11th Cir. 1992) (finding that primary goal of civil sanction was remedial and that existence of secondary punitive goal did not defeat characterization of sanction as remedial).

The contention, therefore, based on the language that initially appeared in Halper, that even the slightest deterrent consequence, whether intended or not, whether the inevitable consequence of remedial provisions or not, renders the statute or the sanction involved “punishment” is not borne out either by a careful reading of the language relied on or by the judicial analysis of the issue. Furthermore, the contention is not supported by the outcome in various cases where the claim of punishment is rejected despite some obvious deterrent impact. The exceptions to these observations are several cases involving the statute before us today, as well as two cases in California and Alaska, and several in Louisiana. All of these decisions involve sex offender registration statutes, but we believe they result from a misreading of the governing law, including, in some, misapplication of the test formulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. , 9 L.Ed.2d 644 (1963) (hereinafter referred to as the Mendoza-Martinez test).¹⁴ See infra at 63-73, 662 A.2d at 399-404.

Much of the foregoing suggests that the question whether statutory provisions constitute punishment for certain constitutional purposes is not ordinarily answered through an analysis that suggests precision and consequently that results in certainty. The problem is most difficult when remedial laws clearly have beneficent societal goals that can be achieved only through sanctions with some punitive impact. At that point, the characterization becomes difficult for the constitutional clauses are not perceived as intending to prevent government from performing its legitimate functions, especially when its regulatory intent is totally free of any suggestion of concealed punitive purpose. As the punitive impact becomes more pronounced, however, the balance may shift and the fact of punishment may overwhelm the purity of the government’s action, imputing to it, perhaps for doctrinal consistency, perhaps incorrectly, a punitive purpose.

The test of punishment, that it depends, in the words of Halper, on whether the statute or sanction can “fairly be characterized” as remedial or punitive, reflects the recognition both that the determination is not precise and, we believe, that it must fairly reflect the underlying constitutional goal of preventing government from using its power to punish either in an excessive or unjust manner. It reflects a concern that application of the constitutional clauses might have the unintended consequence of restricting legitimate government power through formulaic applications of the clauses without accomplishing that constitutional goal.

Where the stated legislative intent is remedial, the burden on those claiming there is a hidden punitive intent is “the clearest proof’ of that intent. United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749-50 (1980) (requiring the clearest proof that the sanction was punitive in either purpose or effect before concluding that Congress, “despite its manifest intention to establish a civil, remedial mechanism,” provided for sanctions so punitive that what was clearly intended as a civil remedy was transformed into a criminal penalty); Flemming, supra, 363 U.S. at 617, 619, 80 S.Ct. at 1376, 1377, 4 L.Ed.2d at 1448, 1449 (observing “that only the clearest proof could suffice to establish the unconstitutionality of a statute on [ground that punitive purpose in fact lay behind the statute],” and concluding that “[i]t is impossible to find in this meagre history the unmistakable evidence of punitive intent which ... is required before a congressional enactment of this kind may be struck down,”); Bae, supra, 44 F.3d at 494 (noting that although the legislative history was replete with references to deterrent objective, “[t]he Supreme Court has consistently required ‘unmistakable evidence of punitive intent’ to characterize a sanction as punishment”).

The foregoing is not intended to diminish the common-sense rule that where a provision or sanction bears no rational relationship to the remedial goal and can only be explained as evidencing an intent to punish, it will be held to constitute punishment for constitutional purposes. Labels, of course, do not “immunize [a law] from scrutiny under the Ex Post Facto Clause. Subtle ex post facto violations are no more permissible than overt ones.” Collins, supra, 497 U.S. at 46, 110 S.Ct. at 2721, 111 L.Ed.2d at 41. But when all the evidence is in, the ultimate question is whether this statute, this sanction, is an impermissible use of government’s power to punish, or whether it is an honest, rational exercise of government’s power, aimed solely at effecting a remedy, its provisions explainable as addressed to that which is being remedied, its deterrent or punitive impact, if any, a necessary consequence of its remedial provisions. There is a judgment to be made by the courts, not preordained by a calculus, and not dependent on judicial conceptions of policy, but rather a judgment guided by well-established rules. The judiciary’s responsibility in these cases is not only to follow those rules, but equally to assure that they do not accomplish what was never intended, striking down a remedial statute passed by a Congress or a Legislature addressing a problem clearly within legislative competence, addressing it rationally, and without any intention of punishing.

C

Some recent eases, and especially some involving the laws before us today, and similar laws elsewhere, have used a different test to determine whether a provision or sanction constitutes punishment. They use the so-called “test” of Mendoza-Martinez, supra, in which the Supreme Court in effect held that the statute employed the sanction of loss of citizenship for the purpose of inflicting punishment for the offense of leaving or remaining outside the country to avoid the draft, that it was a criminal statute, and that it was therefore unconstitutional because it failed to provide the procedural safeguards of the Fifth and Sixth Amendments. Mendoza-Martinez, supra, 372 U.S. at 165-66, 83 S.Ct. at 566, 9 L.Ed.2d at 659. The court below correctly observed that the Mendoza-Martinez “test” is not relevant to our analysis. 283 N.J.Super. at 382, 661 A.2d at 1340.

The Court in Mendozar-Martinez described seven factors that could be useful in determining whether a law or a sanction was civil or criminal, whether the proceeding was a civil proceeding or a criminal proceeding. The Court set forth the factors that “may often point in differing directions,” and that “[ajbsent conclusive evidence of congressional intent as to the penal nature of a statute ... must be considered in relation to the statute on its face.”¹⁵ Id. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661. Having noted before listing the factors that if the statute imposed punishment — and the Court plainly thought it did — “[w]e need go no further,” id. at 167, 83 S.Ct. at 567, 9 L.Ed.2d at 660, and after listing them, that “the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as punitive,” id. at 169, 83 S.Ct. at 568, 9 L.Ed.2d at 661, the Court not surprisingly never again addressed them.

What seemed clear from the Court’s language was that it was not suggesting any “test” to determine whether a proceeding is civil or criminal. The Court described the factors as “the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character.” Id. at 168, 83 S.Ct. at 567, 9 L.Ed.2d at 660-61 (emphasis added). Rather than delineating the list of factors that must be considered together in order to reach that determination, the Court simply listed various factors, the tests, each of which had been used by itself in reaching a determination of whether a statute was penal (criminal) or regulatory (civil), and each of which therefore might be relevant in the future in making that determination, whether alone or in conjunction with the others. Although in the interim some cases have transformed this into the test, requiring consideration and weighing of each of the factors, the use of it as a test is not at all attributable to the Mendoza-Martinez decision itself, for it clearly suggests that each one of the seven factors had been used in distinguishing between regulatory and punitive statutes, citing for each factor the group of cases that had used it, but nowhere suggesting that consideration of all of the factors together is somehow the legally required method of resolving the issue.

The Mendozar-Martinez “test” is really not used as a “test” at all even in those eases where it is properly considered — cases involving the question of the nature of the proceedings, to determine whether they are civil proceedings or criminal proceedings that trigger the Fifth and Sixth Amendments — or cases like Mendoza-Martinez itself that determine whether the sanction is such as to require a criminal trial under the Due Process Clause— and, more importantly, is never properly used to determine whether a provision, statute, or sanction imposes “punishment” in violation of the Ex Post Facto, Double Jeopardy, Excessive Fines, or Cruel and Unusual Punishment Clauses.

The definitive indicator of the appropriate treatment of the Mendoza-Martinez “test” is found in Ward, supra, 448 U.S. at 242, 100 S.Ct. at 2636, 65 L.Ed.2d at 742. There the Court was faced with the question of whether a proceeding should be characterized as civil or criminal, the clearest instance of a situation where the Mendozar-Martinez test would be used. The contention made was that the proceeding was criminal and that therefore the Fifth Amendment applied, in particular the privilege against self-incrimination. The Court held that it was not a criminal ease and that therefore the privilege did not come into play.

The significance of the Court’s opinion is best understood by considering the concurring and dissenting opinions. The concurring Justices noted that the Court of Appeals carefully considered each one of the Mendoza-Martinez factors in reaching its conclusion, a conclusion which the majority reversed. They therefore conducted their own review of each of the seven Mendoza-Martinez factors, one at a time, agreeing with the Court that only one pointed to the characterization of the proceeding as “criminal” and the others weighed in the opposite direction. Ward, supra, 448 U.S. at 257, 100 S.Ct. at 2645, 65 L.Ed.2d at 754-55 (Black-mun, J., concurring). The dissent similarly went through the factors of the Mendoza-Martinez “test,” but found that they led “to the conclusion that the penalty is a criminal sanction rather than a purely regulatory measure.” Id. at 258, 100 S.Ct. at 2646, 65 L.Ed.2d at 755 (Stevens, J., dissenting).

The majority, however, without reference to Mendoza-Martinez, stated that its inquiry to determine whether a particular statutorily defined penalty is civil or criminal has traditionally proceeded on two levels: first, to determine whether Congress intended a civil or criminal label, and, second, if the intent was to establish a civil penalty, to determine whether the scheme nevertheless was so punitive, either in purpose or effect, as to negate that intention. Id. at 248-49, 100 S.Ct. at 2641, 65 L.Ed.2d at 749. The Court pursued the inquiry on that basis, simply noting that the District Court and the Court of Appeals had pursued an analysis based explicitly on the seven factors of the MendozctrMartinez “test.” The most it could say for Mendoza-Martinez was that “this list of considerations, while certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of similar questions and provides some guidance in the present case.” Id. at 249, 100 S.Ct. at 2641, 65 L.Ed.2d at 750 (emphasis added). The Court did not even find it necessary to give its assessment of each of the seven Mendoza-Martinez factors, for it found that only one aided the party attacking the statute. It found that the factor “seems to point toward a finding that [the statute] is criminal in nature,” although “that indication is not as strong as it seems at first blush.” Id. at 250, 100 S.Ct. 2642, 65 L.Ed.2d at 750 (emphasis added).

Not having made its view of the importance of Mendoza-Martinez sufficiently clear, it saw fit to repeat it almost verbatim less than one page later: “In sum, we believe that the factors set forth in Mendoza-Martinez, while neither exhaustive nor conclusive on the issue, are in no way sufficient to render unconstitutional the congressional classification of the penalty established in [the statute] as civil.” Id. at 250-51, 100 S.Ct. at 2642, 65 L.Ed.2d at (emphasis added). Then reverting to what it had initially used as its analysis, the Court went on to say, “[n]or are we persuaded by any of respondent’s other arguments that he has offered the ‘clearest proof that the penalty here in question is punitive in either purpose or effect.” Id. at 251, 100 S.Ct. at 2642, 65 L.Ed.2d at 751. One might wonder of the importance of Mendoza-Martinez as a “test” when the two most important cases to which it has been applied, Mendoza-Martinez and Ward, have treated it so cavalierly, Mendoza-Martinez, the originator, not using it at all, and Ward considering but one factor and dismissing it as unpersuasive.

In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), Scholl, supra, 467 U.S. at 253, 104 S.Ct. at 2403, 81 L.Ed.2d at 207, and Salerno, supra, 505 U.S. at 317, 112 S.Ct. at 2503, 120 L.Ed.2d at 255, the Court was faced with the issue of whether pretrial incarceration violated the Due Process Clause of the Fifth or Fourteenth Amendments, the claim being that it constituted punishment without an adjudication of guilt. That was the same contention made and passed on in Mendoza-Martinez, and in all three of those cases it was relied on, providing further light on its use as a “test.” In Bell, the claim was that the conditions of confinement for ordinary pretrial detainees — the constitutionality of the confinement itself was not challenged — were so bad as to amount to punishment. The Court noted the Mendoza-Martinez “tests traditionally applied to determine whether a governmental act is punitive in nature,” Bell, supra, 441 U.S. at 537, 99 S.Ct. at 1873, 60 L.Ed.2d at 467 (emphasis added), and described them as “provid[ing] useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word.” Id. at 538, 99 S.Ct. at 1873, 60 L.Ed.2d at 468. But it used only two of them, without even commenting on the others, and those two substantially equate with the inquiry made in most of the cases in determining for ex post facto and double jeopardy (multiple punishment) purposes whether a provision, statute, or sanction is remedial or constitutes punishment.¹⁶ Those happened to be the only two factors relevant to the Court’s determination. The description of Mendoza-Martinez as providing factors that are “useful guideposts” is a far cry from the status they are given in recent cases as the determinative test.

In Schall, supra, pretrial detainment of juveniles was challenged under the Fourteenth Amendment both because of the conditions of incarceration, and on the grounds that no legitimate remedial purpose was served by the detention. “It is axiomatic that ‘[d]ue process requires that a pretrial detainee not be punished.’ ” Schall, supra, 467 U.S. at 269, 104 S.Ct. at 2412, 81 L.Ed.2d at 220 (citation omitted). The Court’s determination was premised on Mendoza-Martinez, but again only on the two factors used in Bell. The Court did not even mention that there were other factors or what those factors were.

In Salerno, supra, pretrial detention, there preventive detention based on “future dangerousness,” was challenged under the due process clause of the Fifth Amendment on the grounds that it constituted impermissible punishment before a trial. The Court held that detention on that basis did not constitute “punishment.” Then, reverting to the Mendoza-Martinez “test,” and citing Bell and Schall, the Court relied on the same two factors of Mendoza-Martinez that those cases had relied on.

We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal.

[Salerno, supra, 481 U.S. at 747, 107 S.Ct. at 2101, 95 L.Ed.2d at 708-09 (citations omitted).]

The Court repeated the statement in Schall that “ ‘there is nothing inherently unattainable about a prediction of future criminal conduct.’ ” Id. at 751, 107 S.Ct. at 2103-04, 95 L.Ed.2d at 711 (citation omitted).

Thus, in cases where it would be naturally applied, the Mendozar-Martinez test has been given short shrift. More importantly, for our purposes, the test is not applied at all by the Supreme Court in ex post facto or double jeopardy (multiple punishment) cases to determine whether a sanction constitutes punishment. In Halper, supra, the Supreme Court faced the question whether a civil penalty constituted punishment for the purpose of the Double Jeopardy Clause. The government, taking the position that the question could be answered only by determining the nature of the proceedings as either civil or criminal, adopted what the Court characterized as an “abstract approach [that the Court has followed] when determining whether the procedural protections of the Sixth Amendment applies to proceedings under a given statute,” an approach “appropriate in identifying the apparent nature of a proceeding” and “in determining whether double jeopardy protections should be applied.” Halper, supra, 490 U.S. at 447, 109 S.Ct. at 1901, 104 L.Ed.2d at 501. The “abstract approach” referred to is clearly the Mendoza-Martinez test, for that was the test exclusively referred to in the pages cited by the Halper Court from Ward, supra, 448 U.S. at 242, 100 S.Ct. at 2636, 65 L.Ed.2d at 742.

This abstract approach, the Mendozar-Martinez test, however, was deemed not appropriate by the Court when determining whether a proceeding imposes punishment, regardless of whether it is a civil proceeding or a criminal proceeding, the question of punishment being critical in the other aspect of the Double Jeopardy Clause that prohibits the infliction of multiple punishments, regardless of the nature of the proceeding, for the same offense. Underlining its holding in that respect, the Court noted that whether a civil sanction constitutes punishment depénds on “the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction.” Halper, supra, 490 U.S. at 447 n. 7, 109 S.Ct. at 1901 n. 7, 104 L.Ed.2d at 501 n. 7. Mendoza-Martinez, in other words, is useful only in determining the underlying nature of the proceeding, not the question of whether punishment is imposed by a civil sanction.

This reading of Halper is confirmed in Austin, supra, 509 U.S. at -, 113 S.Ct. at 2801, 125 L.Ed.2d at 488, where the Supreme Court faced the same question, whether punishment was imposed, but in the excessive fines context. Noting that “the question is not, as the United States would have it, whether forfeiture under [the statute] is civil or criminal, but rather whether it is punishment,” id. at -, 113 S.Ct. at 2806, 125 L.Ed.2d at 498, the Court explicitly rejected the use of the Mendozar-Martinez test for determining that question.

For this reason, the United States’ reliance on Kennedy v. Mendoza-Martinez and United States v. Ward is misplaced. The question in those cases was whether a nominally civil penalty should be reclassified as criminal and the safeguards that attend a criminal prosecution should be required. In addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in Mendoza-Martinez and Ward. See, e.g., United States v. Halper, 490 U.S. 435, 447, 109 S.Ct. 1892 [1901], 104 L.Ed.2d 487 (1989). Since in this case we deal only with the question whether the Eighth Amendment’s Excessive Fines Clause applies, we need not address the application of those tests.

[Id. at -n. 6, 113 S.Ct. at 2806 n. 6, 125 L.Ed.2d at 498 n. 6 (citations omitted).]

The reference in Austin to Halper, indicating Halper’s rejection of the Mendozar-Martinez test in the double jeopardy (multiple punishment) context, explicitly confirms the foregoing reading of Halper, and solidly rejects the Mendozar-Martinez test for the purpose of determining punishment not only in the double jeopardy context, but in the excessive fines context. Since all of the cases indicate that punishment for ex post facto purposes and cruel and unusual punishment purposes is substantially indistinguishable from punishment in the double jeopardy and excessive fines context, the rejection of the Mendozar-Martinez test is applicable to those clauses as well.

The Court of Appeals for the Ninth Circuit, when confronted with the contention that the Halper test of punishment should be strictly confined not only to the constitutional clause invoked in the eases that applied it, but to the specific sanction challenged in those cases, concluded that since the issue in all of those cases was whether the sanction constituted “punishment,” the Halper test governed. $405,089.23, supra, 33 F.3d at 1219. Specifically, the Court of Appeals rejected the contention that the Halper test should not be applied where the constitutional attack on civil forfeiture sanctions was that they violated the Double Jeopardy Clause, since it had only been previously applied to such a sanction when challenged under the Excessive Fines Clause in Austin. Ibid. The Court of Appeals, in effect, held that punishment means punishment no matter which clause is involved, specifically holding that Austin’s finding of “punishment” in the excessive fines context fully applied to the same sanction in the double jeopardy context. That court noted, perhaps with some irony, that Austin itself, an excessive fines case applied to a civil forfeiture action, relied on the Halper test, a double jeopardy case involving a civil monetary penalty. Ibid.

Relying on Austin, Halper, and Ward, the Court of Appeals for the Seventh Circuit in Bae explicitly noted that the MendozarMartinez test is not applicable in ex post facto cases where the question is whether punishment is being imposed, just as it is inapplicable to the same question in excessive fines cases. Bae, supra, 44 F.3d at 496. After quoting the Mendoza-Martinez test, which it characterized as a list of “those factors to be considered to determine whether a civil penalty divesting an individual’s citizenship was in effect a criminal penalty requiring the procedural safeguards of the Fifth and Sixth Amendments,” the Court of Appeals observed that “fi]n deciding the related, but independent, question of whether a civil sanction imposes punishment, the Supreme Court has refused to apply the Mendoza-Martinez test.” Ibid. In the challenge under the Ex Post Facto Clause, the court explicitly rejected the use of the Mendozar-Martinez test, holding that Halper should be used to determine whether a civil sanction constitutes “punishment” in the Ex Post Facto context and implicitly in all other similar constitutional contexts. Ibid.

There are unfortunate aspects to the use, particularly the literal use, of Mendozar-Martinez. The mechanical assessment of each of the seven factors, the weighing of each, and the unguided indeterminate balancing of the various weights has the potential, and, we believe, in some cases, the practical effect of distracting a court from a significant analysis of the issues, distracting it from an analysis of the regulatory intent of the statute or sanction, the societal goals served by the regulation, the extent to which its punitive consequences are but an inevitable result of the statute or sanction, and ultimately from an evaluation of the fair characterization of the statute to decide whether the purposes served by the constitutional provisions require its invalidation. If one agrees with Justice Scalia in Kurth Ranch, supra, the Mendoza-Martinez test, if applied in the manner of these recent cases, would permit a statute, provision, or sanction to withstand constitutional attack despite punitive intent and impact if other factors “outweigh” the punitive pointers, a result contrary not only to the contentions of plaintiff, but to this Court’s understanding of the relevant law.

The general and unqualified nature of the language used in Supreme Court cases constitutes a clear rejection of the Mendoza-Martinez test to determine punishment not only in the double jeopardy and excessive fines context, but in the ex post facto context as well. We do not suggest that there are absolutely no differences depending on the constitutional provision involved, in determining the question of punishment, although none have been noted in the analysis of the cases in which the Supreme Court has passed on this question, punishment found or not found, the finding in one constitutional context supported by citation of cases in other contexts. The rejection of the Mendozar-Martinez “tests,” clearly articulated in Austin, and expressed in the most general terms, without the slightest implication that it is limited to challenges under the Excessive Fines Clause, includes the observation that “[i]n addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in Mendoza-Martinez and Ward,” Austin, supra, 509 U.S. at -n. 6, 113 S.Ct. at 2806 n. 6, 125 L.Ed.2d at 498 n. 6, citing as authority for that proposition Halper, not an excessive fines case, but a double jeopardy case.

D

The laws, as we have described them above, when measured against the standards of the cases that determine whether a provision, statute or sanction constitutes punishment, leave no doubt that they are remedial. The legislative intent, based on the history of the legislation and the recitals in the laws themselves, is clearly and totally remedial in purpose and no challenge whatsoever is made to that proposition by any of the parties. They were designed simply and solely to enable the public to protect itself from the danger posed by sex offenders, such offenders widely regarded as having the highest risk of recidivism. Unarguably, as the Supreme Court pointed out in Salerno, supra, 481 U.S. at 747, 107 S.Ct. at 2101, 95 L.Ed.2d at 709, “There is no doubt that preventing danger to the community is a legitimate regulatory goal.”

We find it difficult to accept the notion that the Registration and Notification Laws are designed or are likely to deter repetitive and compulsive offenders who were not previously deterred by the threat of long-term incarceration. Even assuming that removing the shield of anonymity constitutes deterrence, and therefore is arguably punitive, that is the inevitable consequence of these remedial provisions, uniformly sustained in other cases. It is not intended as punishment but rather is a consequence that is simply unavoidable, for it goes to the very heart of the remedy: that which is allegedly punitive, the knowledge of the offender’s record and identity, is precisely that which is needed for the protection of the public. There are various possible responses to the punishment contention to the extent that it is based on the assertion that the punishment is being inflicted for prior conduct already punished, for the fact is that the notification is not based solely on prior conduct, but on the offender’s record after conviction, after release, the record up to the very date of Tier classification and notification, including responsiveness to treatment, whether positive or negative. But such arguments, though legally significant, are really not needed: this law is so clearly remedial, its impact so carefully limited, that it can be said to be solely remedial with no need to explain anything.

The law does not apply to all offenders but only to sex offenders, and as for those who may have committed their offenses many years ago, it applies only to those who were found to be repetitive and compulsive offenders, ie., those most likely, even many years later, to reoffend, providing a justification that strongly supports the remedial intent and nature of the law. It applies to those with no culpability, not guilty by reason of insanity, those who would clearly be excluded if punishment were the goal but included for remedial purposes. And it applies to juveniles, similarly an unlikely target for double punishment but included for remedial protective purposes.

The notification provisions are as carefully tailored as one could expect in order to perform their remedial function without excessively intruding on the anonymity of the offender. The division of notification into Tiers has that as its clear purpose, and the definition of the factors that determine the Tiers are those not only rationally related, but strongly related to the risk of reoffense and the consequent need for greater or lesser notification. The warnings against vigilantism, the requirements of confidentiality, the restriction of notification to those likely to encounter the offender, all point unerringly both at a remedial intent and remedial implementation.

We do not hold that legislative intent is the sole determinant of “punishment” despite the dissent’s claim that we do. Obviously, what the Legislature does is as important as what it says. Characterization of a provision or sanction as punishment depends, as we have noted, not only on the legislative purpose but on the implementing provisions. If the implementing provisions go beyond that regulatory purpose — if they are “excessive” in fact — and have a punitive impact, punishment results, regardless of claimed regulatory intent. That is the central thrust of Austin and Halper and of our analysis in this opinion. The conclusion of our analysis is that the laws before us today not only have a regulatory purpose, and solely a regulatory purpose, but also have implementing provisions that are similarly solely regulatory, provisions that are not excessive but are aimed solely at achieving, and, in fact, are likely to achieve, that regulatory purpose. The fact that some deterrent punitive impact may result does not, however, transform those provisions into “punishment” if that impact is an inevitable consequence of the regulatory provision, as distinguished from an impact that results from “excessive” provisions, provisions that do not advance the regulatory purpose.¹⁷

Plaintiffs additional claims that the challenged provisions of Megan’s Law violate the Bill of Attainder and Cruel and Unusual Punishment Clauses of the State and Federal Constitutions rest upon the premise that the provisions impose punishment. The Bill of Attainder Clause prohibits the legislature from determining guilt and inflicting punishment upon an individual or an easily ascertainable group of individuals without the protections of a judicial trial, Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3352, 82 L.Ed.2d 632, 640 (1984), and the Cruel and Unusual Punishment Clause prohibits the imposition of punishment which is “grossly disproportionate” to the offense involved. Trop, supra, 356 U.S. at 99-103, 78 S.Ct. at 597-99, 2 L.Ed.2d at 641-644. Because the challenged provisions do not constitute punishment, they do not violate any constitutional prohibition against punishment. We briefly address punishment under the bill of attainder analysis, however, as there is some distinction.

In determining whether a statute imposes punishment under the Bill of Attainder Clause, the Court has applied this test:

(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes”; and (3) whether the legislative record “evinces a [legislative] intent to punish.”

[Selective Service, supra, 468 U.S. at 852, 104 S.Ct. at 3355, 82 L.Ed.2d at 643 (citations omitted).]

That test embraces an analysis virtually identical to that underlying the determination of punishment for purposes of the Ex Post Facto and Double Jeopardy Clauses, the only distinguishing characteristic being that it explicitly encompasses an examination of the historical meaning of legislative punishment. While the analysis of the other constitutional prohibitions against punishment does not require a determination of the historical character of the challenged law, it may be helpful. Certainly, an intensive examination of the legislative intent in enacting a law should include all information relevant to the law’s history, and therefore, its characterization as either regulatory or punitive.

Because that historical factor is not dispositive, even if we were to find, and we do not, that the “public stigma” and “ostracism” that petitioner claims is inextricably linked to the registration and notification provisions of Megan’s Law is historically associated with punishment, those provisions would not violate the ban against bills of attainder. The relation between any burdens imposed and the nonpunitive purpose and legislative intent must be accorded greater weight, and we have already concluded that the challenged provisions do not constitute punishment under those inquiries.¹⁸

VI

Privacy

Grounded in the Fourteenth Amendment’s concept of personal liberty, the right of privacy safeguards at least two different kinds of interests: “the individual interest in avoiding disclosure of personal matters,” and “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 598 n. 23, 599-600, 97 S.Ct. 869, 876 and n. 23, 51 L.Ed.2d 64, 73 and n. 23 (1977). Those interests have been characterized as the “confidentiality” and “autonomy” strands of the right of privacy. Shields v. Burge, 874 F.2d 1201, 1209 (7th Cir.1989). The right to confidentiality encompasses two strands: “the right to be free from the government disclosing private facts about its citizens and from the government inquiring into matters in which it does not have a legitimate and proper concern.” ACLU v. Mississippi 911 F.2d 1066, 1069-70 (5th Cir.1990) (emphasis omitted); Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). Plaintiff contends that the Registration and Notification¹⁹ Laws impermissibly infringe on his interest in confidentiality. We disagree.

In assessing plaintiffs claim, we must determine whether, and to what extent, plaintiff has a reasonable expectation of privacy in the information disclosed under the Registration and Notification Laws. See National Treasury Employees Union v. Department of Treasury, 25 F.3d 237, 243 (5th Cir.1994) (citing Fraternal Order of Police, Lodge 5 v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir.1987)); Walls v. City of Petersburg, 895 F.2d 188, 192 (4th Cir.1990). If there is a reasonable expectation of privacy in the information disclosed, we must decide whether the intrusion on the right of privacy is justified, balancing the governmental interest in disclosure against the private interest in confidentiality.²⁰

We first address plaintiffs expectation of privacy in the information disclosed under the Registration Law. Information that is readily available to the public, which an individual cannot expect to remain private, is not within the ambit of constitutional protection. Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.1995). “[A]n individual cannot expect to have a constitutionally protected privacy interest in matters of public record.” Doe v. City of New York, 15 F.3d 264, 268 (2d Cir.1994). Requiring disclosure of plaintiffs prior arrest and conviction, therefore, does not implicate the right to privacy, as those records are publicly available. See Walls, supra, 895 F.2d at 193-94 (holding that police department could require officers to disclose marriages, divorces, births of children, arrests or convictions of family members because they are freely available in public records); Fraternal Order of Police, supra, 812 F. 2d at 117 (holding that arrest records are not entitled to privacy protection).

New Jersey specifically guarantees public access to all court records, including criminal records. R. 1:38; Executive Order No. 123 (1985). In most New Jersey counties, it is possible to go to the courthouse and request an individual’s criminal record within that vicinage, providing only the individual’s name and address. N.J.S.A. 53:1-20.6, enacted in 1994, provides that, upon adoption of implementing rules, any person may obtain a complete criminal history from the State Police by providing a name and either date of birth or social security number and paying a fifteen-dollar fee.

Since 1979, moreover, the Parole Board has been required to give public notice prior to considering any adult inmate for release. The inmate’s name, crimes, and place of conviction are released to the local prosecutor’s offices of each county, police departments, and the press pursuant to N.J.S.A 30:4-123.48(g) and 30:4-123.45(b)(5). It should be noted, furthermore, that pursuant to an amendment — which was enacted along with the Registration and Notification Laws but is not a subject of this appeal— crime victims are notified by prosecutors of a defendant’s release from custody. N.J.S.A 52:4B-44b(21).

Likewise, requiring the disclosure of other information, such as plaintiffs age and legal residence or a description of his vehicle, does not infringe on any expectation of privacy. As the trial court noted, that information is readily available through public records. The records of the Division of Motor Vehicles, which are public records, see N.J.S.A 47:lA-2,²¹ include applications for driver’s licenses and vehicle registrations, and indicate an applicant’s name, street address of residence or business, and a vehicle description. N.J.S.A. 39:3^4 and -9b. Plaintiff therefore cannot have a reasonable expectation of privacy in the information contained therein.

Lastly, an individual cannot expect to have a constitutionally protected privacy interest in matters that are exposed to public view. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967) (stating that Fourth Amendment does not protect what “a person knowingly exposes to the public”). Because a person’s physical appearance is necessarily and constantly exposed to public view, no person can have a reasonable expectation of privacy in his appearance. See United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973). Similarly, no person can have a reasonable expectation of privacy in her fingerprints. See Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900, 905 (1973) (characterising fingerprints as “mere 'physical characteristics ... constantly exposed to the public’ ”) (quoting Dionisio, supra, 410 U.S. at 14, 93 S.Ct. at 771, 35 L.Ed.2d at 79). Requiring a description or photograph and fingerprints, therefore, does not implicate any privacy interest. See Trade Waste Management Ass’n. v. Hughey, 780 F.2d 221, 234 (3d Cir.1985) (concluding that requirement of fingerprinting as condition for obtaining or keeping hazardous and solid waste license, although intrusive, could “hardly be said to involve a violation of a privacy interest protected by the federal constitution”).

Having found no expectation of privacy in the information disclosed under the Registration Law, we now address plaintiffs expectation of privacy in the information disclosed under the Notification Law. With respect to that information, the analysis is substantially the same as that under the Registration Law. Plaintiff has no expectation of privacy in many of the individual pieces of information disclosed, such as his name, convictions, appearance, place of employment or school attended, and the fact of public disclosure of these pieces of information, rather than mere disclosure to the State, does not alter the analysis.

Matters of public record, such as criminal background, may be disclosed without impinging on privacy interests. As stated in Nilson, supra, 45 F.3d at 372,

government disclosures of arrest records, see Paul v. Davis, 424 U.S. 693, 96 S.Ct 1155, 47 L.Ed.2d 405 (1976), judicial proceedings, see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975) and information contained in police reports, see Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1171, 117 L.Ed.2d 417 (1992), do not implicate the right to privacy.

In that case, the court concluded that a sergeant’s post-expungement disclosure, in an interview with a television news reporter, of the plaintiffs sexual abuse charges and conviction did not violate the right of privacy. See Puricelli v. Borough of Morrisville, 820 F.Supp. 908, 917 (E.D.Pa.1993) (finding no violation where an assistant district attorney and detectives, in the course of investigation, discussed plaintiffs criminal record and status as the subject of a grand jury probe with members of the public), aff'd, 26 F.3d 123 (3d Cir.), cert. denied, — U.S. —, 115 S.Ct. 321, 130 L.Ed.2d 282 (1994).

Matters exposed to public view may be disclosed without implicating privacy interests. See Paul v. Davis, 424 U.S. 693, 712-14, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405, 420-21 (1976) (finding that disclosure of plaintiffs name and arrest, along with his photograph, did not violate due process); Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir.1989) (holding that the plaintiffs, police officers who had been publicly reprimanded for running a video store that rented sexually explicit films, had no reasonable expectation of privacy in the reason for the reprimand, because they often worked in the store and were observed telling customers they were police officers).

Our analysis is altered, however, by the disclosure of plaintiffs home address, and more importantly, by the totality of the information disclosed to the public. We believe that public disclosure of plaintiffs home address does implicate privacy interests. “We are reluctant to disparage the privacy of the home, which is accorded special consideration in our Constitution, laws, and traditions.” United States Dep’t of Defense v. Federal Labor Relations Authority, 510 U.S. -, -, 114 S.Ct. 1006, 1015, 127 L.Ed.2d 325, 338 (1994).

In the context of Exemption 6 of the Freedom of Information Act, which prohibits disclosure of files that would constitute a clearly unwarranted invasion of privacy, the Court concluded that the virtually non-existent public interest in disclosure was outweighed by the “not insubstantial” interest of nonbargaining unit employees in nondisclosure of their home addresses to the unions.²² Id. at -, 114 S.Ct. at 1015, 127 L.Ed.2d at 337. According to the Court,

It is true that home addresses often are publicly available through sources such as telephone directories and voter registration lists, but “[in] an organized society, there are few facts that are not at one time or another divulged to another.” The privacy interest protected by Exemption 6 “encompassfes] the individual’s control of information concerning his or her person.” An individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.

[Ibid, (citations omitted).]

The fact that plaintiffs home address may be publicly available, therefore, does not lead ineluctably to the conclusion that public disclosure of his address implicates no privacy interest. We note in particular that the issue here is not whether plaintiff has a privacy interest in his address, but whether the inclusion of plaintiffs address, along with other information, implicates any privacy interest. As stated in Aronson v. Internal Revenue Service, 767 F.Supp. 378, 389 n. 14 (D.Mass.1991), modified, 973 F.2d 962 (1st Cir.1992),

the question of whether an individual has a privacy interest in his or her bare address does not fully frame the issue. The more meaningful question is whether inclusion of the address in the context of the particular requested record raises significant privacy concerns, for example because the inclusion of the address can invite unsolicited contact or intrusion based on the additional revealed information.

See National Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 877 (D.C.Cir.1989), cert. denied, 494 U.S. 1078, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990), (“[T]he disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat depends upon the eharaeteristie(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.”).

Indeed, privacy interests may be implicated where disclosure of a person’s address results in unsolicited contact. See Department of Defense, supra, 510 U.S. at -, 114 S.Ct. at 1015-16, 127 L.Ed.2d at 338 (recognizing significance of disclosure of home address where commercial advertisers and solicitors would have access); Painting Indus. of Hawaii Mkt. Recovery Fund v. United States Dep’t of Air Force, 26 F.3d 1479, 1483 (9th Cir.1994) (noting that an “invasion of privacy ... can result from release of a list of names and addresses coupled with a characteristic susceptible to commercial exploitation”). In this case, where as a result of the information disclosed under the Notification Law, plaintiff may be exposed to uninvited harassment, we conclude that disclosure of plaintiffs home address, particularly when coupled with the other information disclosed, implicates a privacy interest.

We underscore that while we recognize the possibility of such action on the part of the public in determining plaintiffs privacy interests, we expect that the information disclosed will be used as intended: as a means of protection, not as a means of harassment. It should be unmistakably clear that the Registration and Notification Laws are not a license for public lawlessness against registered sex offenders. As the Attorney General has emphasized, there will be, in conjunction with community notification, “a strong emphasis on providing ... advice concerning the consequences of vigilante activity,” for “law enforcement will carefully investigate all allegations of criminal conduct taken by any person against the offender, the offender’s family, employer or school and will criminally prosecute where appropriate.” Guideline VI, Methods of Community Notification.

We find, moreover, that considering the totality of the information disclosed to the public, the Notification Law implicates a privacy interest. That the information disseminated under the Notification Law may be available to the public, in some form or other, does not mean that plaintiff has no interest in limiting its dissemination. As the Court recognized in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 763, 109 S.Ct. 1468, 1476, 103 L.Ed.2d 774, 789 (1989), privacy “eneompass[es] the individual’s control of information concerning his or her person.”

In Reporters Committee, the Court had to determine whether the Freedom of Information Act authorized access to rap sheets. Exemption 7(C) of the Act excluded information compiled for law enforcement purposes to the extent that production of such information could reasonably be expected to constitute an unwarranted invasion of privacy. As a preliminary matter, therefore, the Court had to decide whether .the interest in nondisclosure of a rap sheet was the sort of personal privacy interest protected by Exemption 7(C). Respondents argued that because events summarized in a rap sheet had been previously disclosed to the public, the privacy interest in avoiding disclosure of a federal compilation of those events approached zero. Id. at 762-63, 109 S.Ct. at 1476, 103 L.Ed.2d at 789. The Court dismissed respondents’ “cramped notion of personal privacy,” id. at 763, 109 S.Ct. at 1476, 103 L.Ed.2d at 789, and found privacy interests implicated by disclosure of the information compiled in a rap sheet. As the Court stated, “the fact that ‘an event is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.’ ” Id. at 770, 109 S.Ct. at 1480, 103 L.Ed.2d at 794 (citation omitted).

In reaching that conclusion, the Court recognized a “distinction ... between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole.” Id. at 764, 109 S.Ct. at 1477, 103 L.Ed.2d at 790. As the Court explained,

The very fact that federal funds have been spent to prepare, index, and maintain these criminal-history files demonstrates that the individual items of information in the summaries would not otherwise be “freely available” ... to the general public. Indeed, if the summaries were “freely available,” there would be no reason to invoke the FOIA to obtain access to the information they contain.

[Ibid.]

The Court therefore found “a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information,” and concluded that “the compilation of otherwise hard-to-obtain information alter[ed] the privacy interest implicated by disclosure of that information.”²³ Ibid.

The Court noted, furthermore, that there was a “privacy interest inherent in the nondisclosure of certain information even when the information may have been at one time public.” Id. at 767, 109 S.Ct. at 1479, 103 L.Ed.2d at 792. In Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the Court noted, law students had sought access to Honor and Ethics Code ease summaries that had already been publicly posted on squadron bulletin boards, but “[e]ven though the summaries, with only names redacted, had once been public, we recognized the potential invasion of privacy through later recognition of identifying details____” Reporters Committee, supra, 489 U.S. at 769, 109 S.Ct. at 1480, 103 L.Ed.2d at 793. The Court concluded that “[i]f a cadet has a privacy interest in past discipline that was once public but may have been ‘wholly forgotten,’ the ordinary citizen surely has a similar interest in the aspects of his or her criminal history that may have been wholly forgotten.” Ibid.

The distinction between merely providing access to information and compiling and disclosing that information is evident in this case. Government dissemination of information to which the public merely has access through various sources eliminates the costs, in time, effort, and expense, that members of the public would incur in assembling the information themselves. Those costs, however, may severely limit the extent to which the information becomes a matter of public knowledge. The Notification Law therefore exposes various bits of information that, although accessible to the public, may remain obscure. Indeed, as in Reporters Committee, if the information disclosed under the Notification Law were, in fact, freely available, there would be no need for the law.

In exposing those various bits of information to the public, the Notification Law links various bits of information — name, appearance, address, and crime — that otherwise might remain unconnected. However public any of those individual pieces of information may be, were it not for the Notification Law, those connections might never be made. We believe a privacy interest is implicated when the government assembles those diverse pieces of information into a single package and disseminates that package to the public, thereby ensuring that a person cannot assume anonymity — in this case, preventing a person’s criminal history from fading into obscurity and being wholly forgotten. Those convicted of crime may have no cognizable privacy interest in the fact of their conviction, but the Notification Law, given the compilation and dissemination of information, nonetheless implicates a privacy interest. The interests in privacy may fade when the information is a matter of public record, but they are not non-existent. See Reporters Committee, supra, 489 U.S. 749, 763 n. 15, 109 S.Ct. 1468, 1476 n. 15, 103 L.Ed.2d 774, 789 n. 15.

Having found privacy interests implicated only by the Notification Law, however diminished those interests may be by the public nature of the individual pieces of information disclosed, we must determine whether the state interest justifies disclosure. Courts in this circuit have considered the following factors:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent noneonsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Faison v. Parker; 823 F.Supp. 1198, 1201 (E.D.Pa.1993) (citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3d Cir.1980)).]

Although those factors have generally been applied in cases involving disclosures to the government, they also provide the proper framework for assessing government disclosure of information. See Ms. B. v. Montgomery County Emergency Serv., Inc., 799 F.Supp. 534, 537-38 (E.D.Pa.1992), aff'd, 989 F.2d 488 (3d Cir.), cert. denied, — U.S. —, 114 S.Ct. 174, 126 L.Ed.2d 133 (1993) (granting motion for summary judgment to state mental health professionals who disclosed threats made by patient during course of treatment).

We find, based on those factors, that the state interest in public disclosure substantially outweighs plaintiffs interest in privacy. First, the information requested is not deserving of a particularly high degree of protection. We are not dealing with thoughts and feelings revealed in the course of psychiatric treatment, Ms. B., supra, 799 F.Supp. at 538, medical information in general, Westinghouse, supra, 638 F.2d at 577, or medical information regarding HIV status, Doe v. Borough of Barrington, 729 F.Supp. 376, 384 (D.N.J.1990). Plaintiff, therefore, can claim only a most limited expectation of privacy in the information to be disseminated. Second, because of the public nature of the information, we cannot speak of harm either from non-consensual disclosure or damage to the relationship in which the records were generated. We neither risk exposing intimate details of plaintiffs life, like those laid bare to a psychiatrist, nor do we risk damaging a relationship like that between patient and doctor by releasing plaintiffs name, address or description. See Ms. B., supra, 799 F.Supp. at 538.

Counterbalanced against plaintiffs diminished privacy interest is a strong state interest in public disclosure. There is an express public policy militating toward disclosure: the danger of recidivism posed by sex offenders. The state interest in protecting the safety of members of the public from sex offenders is clear and compelling. Compare Ms. B., supra, 799 F.Supp. at 538 (finding strong state interest in protecting citizens from violent assault by mentally ill) with Doe, supra, 729 F.Supp. at 385 (concluding that disclosure of the Does’ confidential information — that Jane Doe’s husband had tested HIV positive — did not advance compelling state governmental interest in preventing the spread of AIDS because there was no risk of exposure to HIV virus from casual contact with Jane Doe). The Legislature has determined that there is a substantial danger of recidivism by sex offenders, and public notification clearly advances the purpose of protecting the public from that danger.

We note that the degree and scope of disclosure is carefully calibrated to the need for public disclosure: the risk of reoffense. The greater the risk of reoffense, the greater is the scope of disclosure. The extent or degree of the information disclosed is similarly limited by the need for disclosure. See Ms. B., supra, 799 F.Supp. at 539 (noting that disclosure by mental health professionals was limited to fact that the plaintiff had made threats and apparently had the means to carry them out, and that disclosure was made only to law enforcement personnel and one of the threatened individuals). Only that information necessary to alert the public of, and protect the public from, the risk posed by the offender is released. The public is notified of an individual’s criminal history to alert it of the possible danger, and is provided with sufficient information to. identify that individual.

Our inquiry is not at an end, however; we must determine plaintiffs rights under the State Constitution. With its declaration of the right to life, liberty, and the pursuit of happiness, Article I, § 1 of the New Jersey Constitution encompasses the right of privacy. Right to Choose v. Byrne, 91 N.J. 287, 303, 450 A.2d 925 (1982); State v. Baker, 81 N.J. 99, 114 n. 10, 405 A.2d 368 (1979). We have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information. Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 96, 609 A.2d 11 (1992) (citing In re Martin, 90 N.J. 295, 447 A.2d 1290 (1982)).

In resolving conflicts between the government’s need for information and the individual’s right of confidentiality, this Court has adopted a balancing test similar to that adopted by the federal courts. Martin, supra, 90 N.J. at 318, 447 A.2d 1290. We concluded, in Martin, that “ ‘even if the governmental purpose is legitimate and substantial ... the invasion of the fundamental right of privacy must be minimized by utilizing the narrowest means which can be designed to achieve the public purpose.’” Ibid. (quoting Lehrhaupt v. Flynn, 140 N.J.Super. 250, 262, 264, 356 A.2d 35 (App.Div.1976), aff'd o.b., 75 N.J. 459, 383 A.2d 428 (1978)); In re Solid Waste Util. Customer Lists, 106 N.J. 508, 522, 524 A.2d 386 (1987) (stating that “the legitimate public interest in certain information must be balanced with the competing right of privacy of the individuals possessing such information”).

Under the State Constitution, the result of our balancing is no different than that under the Federal Constitution. We find that the state interest in protecting the public is legitimate and substantial. See Martin, supra, 90 N.J. at 319, 447 A.2d 1290 (recognizing “substantial government interest in strict regulation of casino gambling”). We find, more importantly, that the interest in disclosure substantially outweighs the interest in nondisclosure. Because none of the information disclosed under the Registration Law is confidential, requiring disclosure of such information results in a minimal invasion of privacy. See id. at 320, 447 A.2d 1290 (concluding that incursion resulting from challenged questionnaire was minimal because the questions “concern predominantly information of public record, such as ... prior arrests or convictions, ... and driver’s license information”). Although the potential consequences of active dissemination under the Notification Law alter the privacy interests, the incursion on those interests is necessary for the protection of the public, as the means chosen are narrowly tailored to that interest.

Thus, we conclude, under both the State and Federal Constitutions, that neither the Registration, nor the Notification Law, violates the right to privacy.

VII

Equal Protection

Plaintiff Doe asserts that the notification and registration requirements of the statute violate his right to equal protection under the Federal and State Constitutions. The trial court, while relying only on federal equal protection analysis, nonetheless held that neither equal protection provision is violated. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985). Plaintiff argues that he is entitled to be treated as an individual and not classified with other sex offenders who, unlike plaintiff, have not successfully completed treatment at Avenel. He emphasizes that he is one of few offenders who have been determined to be repetitive compulsive offenders but have earned release from Avenel because they have been determined to be no longer dangerous. He asserts that his right to equal protection requires that he be viewed by the law individually rather than as part of a class. This argument miseharacterizes the Equal Protection Clause.

Equal protection does not preclude the use of classifications, but requires only that those classifications not be arbitrary. State v. Mortimer, 135 N.J. 517, 536, 641 A.2d 257 cert. denied, — U.S. —, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994).

[W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end.

[City of Cleburne, supra, 473 U.S. at 441-42, 105 S.Ct. at 3255, 87 L.Ed.2d at 321.]

Plaintiffs classification as a sex offender subject to the Notification Law is based on the distinguishing characteristic that he was convicted of one of the enumerated sex offenses. His classification as Tier One, Two, or Three for notification purposes will also be based on his individual characteristics as they relate to the risk that he will commit another offense.

A classification that does not impact a suspect class or impinge upon a fundamental constitutional right²⁴ will be upheld if it is rationally related to a legitimate government interest. Brown v. City of Newark, 113 N.J. 565, 573, 552 A.2d 125 (1989) (citing Barone v. Department of Human Servs., 107 N.J. 355, 365, 526 A.2d 1055 (1987) (citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970))). “The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Furthermore, some objectives ... are not legitimate state interests.” City of Cleburne, supra, 473 U.S. at 446-47, 105 S.Ct. at 3258, 87 L.Ed.2d at 324. However, “legislation may impose special burdens upon defined classes in order to achieve permissible ends.” State v. Bianco, 103 N.J. 383, 395, 511 A.2d 600 (1986) (citing Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577, 580 (1966)).

It is well settled that classifying offenders according to the offense committed is subject to rational basis analysis, see State v. Lagares, 127 N.J. 20, 36, 601 A.2d 698 (1992) (holding that statute providing enhanced penalties for drug related offenses does not violate equal protection), and that the mentally ill are not a class warranting a higher level of scrutiny, City of Cleburne, supra, 473 U.S. at 442-46, 105 S.Ct. at 3255-58, 87 L.Ed.2d at 321-24. This Court, moreover, has specifically held that creating a separate classification for repetitive-compulsive sex offenders is not arbitrary and “has a rational basis.” State v. Wingler, 25 N.J. 161, 176, 135 A.2d 468 (1957). There is clearly no question but that the trial court was correct in its conclusion that “[p]ublic safety is unquestionably within the Legislature’s powers and protecting the public from recidivistic sex offenders is a legitimate state interest.”

Plaintiff argues nonetheless that he should not be classified with other repetitive compulsive sex offenders because, unlike most offenders in this category, he was determined to have successfully completed treatment and released on parole. However, the requirements of equal protection, when measured under rational basis standards, are not offended merely because the classification is not narrowly tailored. See New York City Transit Auth. v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (rejecting equal protection challenge to ban on hiring users of any narcotics, including methadone, even though some methadone users are involved in successful drug abuse treatment programs). “Proper classification for equal protection purposes is not a precise science____ As long as the classifications do not discriminate arbitrarily between persons who are similarly situated, the matter is one of legislative prerogative.” Greenberg v. Kimmelman, 99 N.J. 552, 577, 494 A.2d 294 (1985).

The Legislature has determined that convicted sex offenders represent a risk to the public safety and that knowledge of their identities and whereabouts is necessary for protection of the public. Since the registration and notification requirements are rationally related to that legitimate state interest, the requirements of equal protection under the Fourteenth Amendment are satisfied.

Although the term “equal protection” does not appear anywhere in the New Jersey Constitution, Article I, paragraph 1 of our Constitution has been interpreted as conferring the right to equal treatment under the law, a right analogous to the guarantee of equal protection under the Fourteenth Amendment to the Federal Constitution. Barone, supra, 107 N.J. at 367, 526 A.2d 1055 (citing Greenberg, supra, 99 N.J. at 568, 494 A.2d 294). Although conceptually similar, the right under the State Constitution can in some situations be broader than the right conferred by the Equal Protection Clause. Right to Choose, supra, 91 N.J. 287, 450 A.2d 925 (holding that statute which satisfies federal equal protection requirements violates equal protection under State Constitution). Although plaintiff has presented no argument for justifying expansion of equal protection beyond the federal right in this case, see State v. Hunt, 91 N.J. 338, 363-368, 450 A.2d 952 (1982) (Handler, J., concurring); In re Promulgation of Guardianship Servs. Regs., 103 N.J. 619, 628, 512 A.2d 453 (1986), we nevertheless proceed with the state constitutional analysis.

To determine whether the Registration and Notification Laws violate equal protection under the New Jersey Constitution, we apply a balancing test which considers the nature of the right affected, the extent to which the government action interferes with that right, and the public need for such interference. Brown, supra, 113 N.J. at 573-74, 552 A.2d 125 Barone, supra, 107 N. J. at 368, 526 A.2d 1055. We conclude that the public need for information about dangerous sex offenders greatly outweighs plaintiffs right to privacy and the intrusion of that right associated with registration and notification.

Plaintiff asserts that he has the right to individual treatment but, as we have already concluded, there is no such right under either Constitution. More than that, plaintiffs significant individual characteristics are assured recognition under these laws. He is a repetitive and compulsive offender, and his inclusion in the initial class of those required to register is not only rational, but closely related to a strong state interest. These are the sex offenders most likely to reoffend. Thereafter, he will be placed in a class that is carefully defined to reflect his specific characteristics that reasonably predict his specific risk of reoffense. He will not be lumped together with all sex offenders but will be placed either in Tier One, Two or Three, depending upon his characteristics alone, the notification that results again directly related to a strong state interest.

Classification of plaintiff based on his conviction of one of the enumerated sex offenses and his characterization as a repetitive compulsive offender is rationally related to the government’s interest in protection of the public. The need for public safety outweighs the restrictions placed upon plaintiff as a result of his inclusion in this class. We conclude therefore that the registration and notification requirements do not violate plaintiff’s right to equal protection under either the Federal or State Constitution.

VIII

Administrative Procedure Act

Plaintiff challenges the authority of the Attorney General to promulgate Guidelines for implementation of the registration and notification requirements. Plaintiff asserts that the Attorney General’s Guidelines are rules which must be adopted in conformance with the notice and hearing requirements of the Administrative Procedure Act (the “APA”), N.J.S.A 52:14B-1 to -15. The APA requires that prior to the adoption of an administrative rule, an agency must provide thirty days notice of its intent to issue the rule, publish a summary and explanation of the rule, and afford “all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.” N.J.S.A 52.-14B-4.

The APA defines an administrative rule as an “agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency.” N.J.S.A 14B-2(e). Exempt from its requirements are any rules that can be categorized as “statements concerning the internal management or discipline of any agency” and communications between and within agencies. Ibid.

The Attorney General offers three alternative reasons why the Guidelines need not conform to the APA procedures: that the Guidelines are not administrative rules as defined by the APA; that the Guidelines fall under the internal communication exception; and that the Legislature clearly intended that the Guidelines not be subject to the APA notice and hearing requirements.

Because of the widespread impact of the Guidelines, not only on the offenders required to register but also on the members of the general public who seek notification, we disagree with the Attorney General’s contention that the Guidelines can be considered internal department communications. See Woodland Private Study Group v. Department of Envtl. Protection, 109 N.J. 62, 74, 533 A.2d 387 (1987) (holding that application of the internal communication exception depends on “whether the agency action has a ‘substantial impact’ on the rights or interests of the parties”). The Guidelines clearly have a substantial impact on the offender’s liberty interest as well as on the public’s interest in the protection of children, both of which are interests “sufficiently important [and] worthy of recognition.” Ibid.

Having determined that the internal communication exception does not apply, we must determine whether the Guidelines otherwise meet the statutory definition of administrative rules. In Metromedia v. Division of Taxation, 97 N.J. 313, 331-32, 478 A.2d 742 (1984), we set forth six factors to be applied when determining whether an agency action constitutes rulemaking which must conform to the requirements of the Administrative Procedure Act. Those factors are whether the action

(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.

[Ibid.]

Although in Metromedia we were concerned about the distinction between rulemaking and adjudication, the factors are relevant whenever the authority of an agency to act without conforming to the formal rulemaking requirements is questioned. Woodland Private Study Group, supra, 109 N.J. at 67, 533 A.2d 387. The factors need not be given the same weight, and some factors will clearly be more relevant in a given situation than others: “All six of the Metromedia factors need not be present to characterize agency action as rulemaking, and the factors should not merely be tabulated, but weighed.” In re Solid Waste Util. Customer Lists, supra, 106 N.J. at 518, 524 A.2d 386.

The court below applied those factors and found that the Guidelines did constitute rulemaking. We agree that the Guidelines are intended to have -wide coverage, to be applied uniformly and to operate prospectively, thereby satisfying the first three Metromedia factors. However, the remaining factors point strongly in the other direction and, in this case, deserve the most weight.

The fourth factor is whether the Guidelines “prescribe! ] a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization.” Metromedia, supra, 97 N.J. at 331, 478 A.2d 742. The Guidelines are to a great extent merely a formalization of the classification requirements explicitly set forth in the statute. To the extent that the classification criteria, or any other requirements of the Guidelines, deviate substantially from the explicit or implied standards of the statute, those aspects of the Guidelines are subject to judicial review, see, e.g., A.A. Mastrangelo, Inc. v. Department of Envtl. Protection, 90 N.J. 666, 449 A.2d 516 (1982), as well as review by the Legislature, N.J. Const. art. V, § 4, If 6. We. have, in this opinion, required revisions to the Guidelines which would tailor them more closely to the statutory language. See supra at 34-38, 662 A.2d at 384-86. Therefore, the fourth factor, and the one we believe to be the most important of the six Metromedia factors in this instance, is not satisfied.

In addition, we disagree with the trial court’s conclusion regarding the fifth Metromedia factor: that the Guidelines reflect a material change in administrative policy which conflicts with the Attorney General’s “past agency position on the identical subject matter.” Metromedia, supra, 97 N.J. at 331, 478 A.2d 742. The Attorney General could not have a policy concerning a statute which did not previously exist. See Reuben H. Donnelley Corp. v. Division of Taxation, 128 N.J. 218, 607 A.2d 1281 (1992) (holding that change in policy as a result of amendment to tax statute is not a change in past agency position for purposes of applying the fifth Metromedia factor).

Similarly, the sixth Metromedia factor does not apply, for the Guidelines do not represent a “policy in the nature of the interpretation of law or general policy.” Metromedia, supra, 97 N.J. at 322, 478 A.2d 742. The Guidelines do not represent the conclusions of administrative agency policy makers on how best to apply a broad statutory grant of authority. See, e.g., R.H. Macy & Co. v. Division of Taxation, 77 N.J.Super. 155, 185 A.2d 682 (App.Div.1962), aff'd o.b., 41 N.J. 3, 194 A.2d 457 (1963) (holding that the Division of Taxation has discretion to value taxpayer corporation’s net worth by a method other than that used by the taxpayer as long as it conforms to “sound accounting principles”). Nor are they a statement of policy adopted without any statutory authority. E.g., Department of Envtl. Protection v. Stavola, 103 N.J. 425, 511 A.2d 622 (1986) (concluding that agency must follow rulemaking procedure in order to exert regulatory authority over cabanas since such structures are not mentioned in the enabling statute). Rather, the Guidelines were prepared in response to a specific statutory mandate and their contents are largely dictated either explicitly or implicitly by the language of the statute.²⁵

We therefore hold that the Guidelines are not administrative rules which must conform to the requirements of the Administrative Procedure Act and reverse the ruling of the trial court on that issue.

IX

Procedural Due Process and Fairness and Rightness

The United States Constitution provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Article I, paragraph 1 of the New Jersey Constitution does not enumerate the right to due process, but protects against injustice and, to that extent, protects “values like those encompassed by the principle[ ] of due process.” Greenberg, supra, 99 N.J. at 568, 494 A.2d 294. In examining a procedural due process claim, we first assess whether a liberty or property interest has been interfered with by the State, and second, whether the procedures attendant upon that deprivation are constitutionally sufficient. Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994) (quoting Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506, 514 (1989)).

We deal here not with the question of substantive constitutional deprivation, for we have held that there is none. The question treated in this section is whether in the implementation of notification, procedural protections are required beyond those found in these laws in order to assure fairness and accuracy in carrying them out. Plaintiff contends that the Registration and Notification Laws implicate liberty interests in privacy and reputation. Specifically, he argues that dissemination of information under the Notification Law impinges on the interest in nondisclosure, and that classification under the Notification Law, with its attendant disclosure, not only identifies him as a sex offender but effectively brands him as potentially currently dangerous, thereby infringing his interest in reputation. We find that both interests constitute protectible liberty interests, and therefore that procedural protection is due. We hold that such additional procedures in the form of a hearing are due, that they must, on application, be provided before notification and that they are constitutionally required. See infra at 128-35, 662 A.2d at 432-35.

Public notification implicates a privacy interest in nondisclosure, and therefore triggers due process. The right to privacy is among the protectible interests which due process protects. The Court has suggested that “the ‘right of privacy’ is founded in the Fourteenth Amendment’s concept of personal liberty.” Whalen, supra, 429 U.S. at 598 n. 23, 97 S.Ct. at 876 n. 23, 51 L.Ed.2d at 73 n. 23 (quoting Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147, 176-77 (1973)). Indeed, in his classic, statement, Justice Brandéis characterized “the right to be let alone” as the most comprehensive of rights and the right most valued by a civilized society. Id. at 599 n. 25, 97 S.Ct. at 876 n. 25, 51 L.Ed.2d at 73 n. 25 (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 956 (1928) (Brandéis, J., dissenting)).

“The question of whether one’s good name and standing, and the interest in protecting that reputation, constitutes a protectible liberty interest” has been addressed in a number of cases. Valmonte, supra, 18 F.3d at 999. In Wisconsin v. Constantineau, 400 U.S. 433, 434, 91 S.Ct. 507, 508, 27 L.Ed.2d 515, 517 (1971), a statute authorized the posting of a notice prohibiting the sale or gift of liquor to any person who “ ‘by excessive drinking’ produces described conditions or exhibits specified traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous to the peace’ of the community.” Stating that “[i]t would be naive not to. recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule,” id. at 436, 91 S.Ct. at 509, 27 L.Ed.2d. at 518, the Court held that a protectible liberty interest is implicated “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.” Id. at 437, 91 S.Ct. at 510, 27 L.Ed.2d at 519.

A year later, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Court again addressed “the nexus between reputation and the due process clause.” Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir.1987). The plaintiff, a university professor who was not rehired following the end of his one-year appointment, alleged that “the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law.” Roth, supra, 408 U.S. at 569, 92 S.Ct. at 2705, 33 L.Ed.2d at 556. The Court held that no liberty interests were implicated because, in declining to hire the plaintiff, the State neither made “any charge against him that might seriously damage his standing and associations in the community,” id. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 558, nor “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities,” id. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 559. Had the State done either, however, the Court stated that “a different case” would have been presented. Id. at 573, 573-74, 92 S.Ct. at 2707, 33 L.Ed.2d at 558, 559.

In Paul, supra, 424 U.S. at 701, 96 S.Ct. at 1161, 47 L.Ed.2d at 414, however, the Court concluded that “reputation alone, apart from some more tangible interests such as employment, is [not] either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” According to the Court, harm to reputation must be accompanied by the alteration of “a right or status previously recognized by state law,” for it is that “alteration, officially removing the interest from the recognition and protection previously afforded by the State, which [the Court has] found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment.” Id. at 711, 96 S.Ct. at 1165, 47 L.Ed.2d at 420. The Court held, therefore, that because the circulation of flyers publicizing the plaintiffs arrest for shoplifting and labelling him an “active shoplifter” only harmed his reputation, and did not alter his status as a matter of state law, there was no deprivation of a protectible liberty interest.²⁶ Id. at 712, 96 S.Ct. at 1166, 47 L.Ed.2d at 420.

Paul has been interpreted to require “stigma plus” to establish a constitutional deprivation. See Valmonte, supra, 18 F.3d at 999. “[M]ere damage to reputation, apart from the impairment of some additional interest previously recognized under state law, is not cognizable under the due process clause.” Sturm, supra, 835 F.2d at 1012. As stated in Borucki v. Ryan, 827 F.2d 836, 842-43 (1st Cir.1987),

an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all the attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right; infringement of more ‘tangible interests’ ... must be alleged as well.

We therefore must assess whether plaintiff has established damage to reputation and impairment of some additional interest.

Plaintiff has plainly established that classification in Tiers Two or Three will result in damage to his reputation. In Constantineau, supra, the Court recognized that public embarrassment and ridicule would result from the posting, and that a person’s good name or reputation would therefore be at stake. In Valmonte, a case more analogous to the one before us, the court stated that “[t]here is no dispute that Valmonte’s inclusion on the [Central Register] potentially damages her reputation by branding her as a child abuser, which certainly calls into question her ‘good name, reputation, honor, or integrity.’ ” Valmonte, supra, 18 F.3d at 1000 (citation omitted). Similarly, in Bohn v. County of Dakota, 772 F.2d 1433, 1436 n. 4 (8th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1192, 89 L.Ed.2d 307 (1986), the court found that “[b]y identifying the Bohns as child abusers, investigating the quality of their family life, and maintaining data on them, the County Department exposed them to public opprobrium and may have damaged their standing in the community.” Thus, we conclude that classification in Tiers Two or Three, with the requisite public notification, would expose plaintiff to public opprobrium, not only identifying him as a sex offender but also labelling him as potentially currently dangerous, and thereby undermining his reputation and standing in the community.

The harm to plaintiff’s reputation, when coupled with the incursion on his right of privacy, although justified by the compelling state interest, constitutes a protectible interest. In Paul, the Court recognized that in addition to the interests recognized by state law, “[t]here are other interests ... protected not by virtue of their recognition by the law of a particular State but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment.” Paul, supra, 424 U.S. at 710 n. 5, 96 S.Ct. at 1165 n. 5, 47 L.Ed.2d at 419 n. 5. In Bohn, supra, 772 F.2d at 1436 n. 4, therefore, the court found a protectible interest in reputation where the stigma of being identified as child abuser was tied to the protectible interest in privacy and autonomy of family relationships. That interest, the court noted, has found protection in the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as the Ninth Amendment. Id. at 1436 (citations omitted). Thus, we conclude that because the stigma resulting from notification is tied to the protectible interest in privacy, which has been grounded in the Fourteenth Amendment, plaintiff has a protectible interest in his reputation.

Under the State Constitution, we find protectible interests in both privacy and reputation. Our analysis differs from that under the Federal Constitution only to the extent that we find a protectible interest in reputation without requiring any other tangible loss. In interpreting the State Constitution, we “look to both the federal courts and other state courts for assistance____ [but] [t]he ultimate responsibility for interpreting the New Jersey Constitution ... is ours.” Greenberg, supra, 99 N.J. at 568, 494 A.2d 294. In fulfilling that responsibility, “we have generally been more willing to find State-created interests that invoke the protection of procedural due process than have our federal counterparts.” New Jersey Parole Bd. v. Byrne, 93 N.J. 192, 208, 460 A.2d 103 (1983).

The New Jersey Constitution does not explicitly enumerate the right to possessing or protecting reputation. That right, however, was understood to be guaranteed by Article I, paragraph 1 of the Constitution of 1844.²⁷ “The right of a person to be secure in his reputation ... is a part of the right of enjoying life and pursuing and obtaining safety and happiness which is guaranteed by our fundamental law.” Neafie v. Hoboken Printing & Publishing Co., 75 N.J.L. 564, 567, 68 A. 146 (E. & A.1907); Bednarik v. Bednarik, 18 N.J.Misc. 633, 650, 16 A.2d 80 (Ch.1940) (“The Constitution of New Jersey deals with [the right to personal privacy and security] in Art. 1, plac. 1. The immunity ‘consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.’”) (citation omitted), overruled on other grounds by Cortese v. Cortese, 10 N.J.Super. 152, 160, 76 A.2d 717 (App.Div.1950). Where a persons’s good name or reputation are at stake because of what the government is doing to that person, we conclude, sufficient constitutional interests are at stake. See Grodjesk v. Jersey City Medical Ctr., 135 N.J.Super. 393, 411-12, 343 A.2d 489 (Ch.Div.1975) (finding that plaintiff surgeons were entitled to due process where censure by executive committee of publicly funded hospital damaged their reputation and professional standing).

That conclusion is particularly strengthened in this case by the nature of the stigmatization involved. We have held previously that after conviction, “classification as a ‘repetitive’ and ‘compulsive’ sex offender under N.J.S.A. 2C:47-3a inflicts a greater stigma than that resulting from the conviction for a sex offense,” when there is no such classification. State v. Howard, 110 N.J. 113, 129, 539 A.2d 1203 (1988). The defendant’s liberty interest was reduced because “[w]hen sentencing a convicted sex offender, the court does not choose between freedom and commitment of the defendant, but only between commitment at one state correctional facility or another.” Id. at 130-31, 539 A.2d 1203. We concluded, however, that “[ajlthough the added stigma may be slight, it should be considered in determining the process due to a defendant before imposition of an Avenel sentence.” Id. at 129, 539 A.2d 1203.

In this case, plaintiff’s liberty interest is more significant than that in Howard. If not for the Registration and Notification Laws, or if classified in Tier One, plaintiff would be stigmatized only to the extent that the fact of his incarceration and the crime for which he was convicted might be publicly known. Because only the prosecutor and local law enforcement would receive notification under Tier One, he would be free, to the degree possible, to rehabilitate his name and standing in the community. However, if classified in Tier Two or Three, plaintiffs name and standing in the community would be threatened to the extent that his prior undisclosed criminal history and his new classification become known. We conclude that the consequences to plaintiffs reputation from classification in Tier Two or Three implicate a liberty interest.

Thus, we conclude that under both the Federal and State Constitutions, the Registration and Notification Laws implicate protectible liberty interests in privacy and reputation, and therefore trigger the right to due process. Due process is not a fixed concept, however, but a flexible one that depends on the particular circumstances. Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100, 114-15 (1990); Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 33 (1976); Nicoletta v. North Jersey Dist. Water Supply Comm’n, 77 N.J. 145, 165, 390 A.2d 90 (1978). Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. Kahn v. U.S., 753 F.2d 1208, 1218 (3d Cir.1985). The minimum requirements of due process, therefore, are notice and the opportunity to be heard. U.S. v. Raffoul, 826 F.2d 218, 222 (3d Cir.1987) (citing Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975)).

To determine what procedural protections are required in a given case, we must weigh the following factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[Zinermon, supra, 494 U.S. at 127, 110 S.Ct. at 984, 108 L.Ed.2d at 115 (quoting Mathews, supra, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33).]

Applying that test, the Supreme Court “usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty____” Id. at 127, 110 S.Ct. at 984, 108 L.Ed.2d at 115.

Weighing those factors, we find that a hearing is required prior to notification under Tiers Two and Three. First, the private interests in privacy and reputation are significant. Second, additional safeguards would ensure that deprivations of those interests occur only when justified by the risk posed by the offender. Last, the State interest in prompt classification and notification will not seriously be burdened by additional safeguards, and any resulting burden is justified by the benefits of ensuring accurate classification.

We need not impugn the motives of a prosecutor to require that an independent decision-maker review the Tier classification. See Morrissey v. Brewer, 408 U.S. 471, 485, 486, 92 S.Ct. 2593, 2602, 2602-03, 33 L.Ed.2d 484, 497 (1972) (concluding that “determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case” because “[t]he officer directly involved in making recommendations cannot always have complete objectivity in evaluating them”); Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287, 301 (1970) (stating that “an impartial decision maker is essential” and that prior “involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decisionmaker. He should not, however, have participated in making the determination under review”).

Even if principles of due process did not require that defendants classified as Tier Two or Three be granted a pre-notification hearing, such process would be required by considerations of fundamental fairness. New Jersey’s doctrine of fundamental fairness “serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily. [It] serves, depending on the context, as an augmentation of existing constitutional protections or as an independent source of protection against state action.” State v. Ramseur, 106 N.J. 123, 377, 524 A.2d 188 (1987) (Handler, J., dissenting). This unique doctrine is not appropriately applied in every case but only in those instances where the interests involved are especially compelling. “Fundamental fairness is a doctrine to be sparingly applied. It is appropriately applied in those rare cases where not to do so will subject the defendant to oppression, harassment, or egregious deprivation.” State v. Yoskowitz, 116 N.J. 679, 712, 563 A.2d 1 (1989) (Garibaldi, J., concurring and dissenting).

This Court has relied on the concept of fundamental fairness to require procedures to protect the rights of defendants at various stages of the criminal justice process even when such procedures were not constitutionally compelled. State v. Wingler, 25 N.J. 161, 135 A.2d 468 (1957) (affording defendant opportunity to see and respond to diagnostic report from Adult Diagnostic and Treatment Center); State v. Kunz, 55 N.J. 128, 259 A.2d 895 (1969) (mandating that defendants are entitled to inspect presentence report and to be heard on any adverse contents); Monks v. New Jersey State Parole Bd., 58 N.J. 238, 277 A.2d 193 (1971) (holding that a prisoner is entitled to a statement of reasons for denial of parole). In addition, this doctrine has been invoked when the actions of government, though not quite rising to the level of a constitutional violation, nonetheless included aspects of unfairness which required this Court’s intervention. Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216 (1971) (holding that an indigent municipal court defendant subject to imprisonment or other “consequence of magnitude” such as loss of driving privilege is entitled to court-appointed counsel at no cost); Donaldson v. Board of Educ., 65 N.J. 236, 320 A.2d 857 (1974) (public school teacher denied tenure is entitled to a statement of reasons); Yoskowitz, supra, 116 N.J. at 679, 563 A.2d 1 (concluding that although second prosecution based on same facts did not violate double jeopardy, remand was necessary to determine if fundamental fairness was violated).

Although we have applied the doctrine of fundamental fairness in a variety of contexts, there is one common denominator in all of those cases: a determination that someone was being subjected to potentially unfair treatment and there was no explicit statutory or constitutional protection to be invoked.

Fundamental fairness is a doctrine that is an integral part of due process, and is often extrapolated from or implied in other constitutional guarantees. The doctrine effectuates imperatives that government minimize arbitrary action, and is often employed when narrowed constitutional standards fall short of protecting individual defendants against unjustified harassment, anxiety, or expense.

[Id. at 731, 563 A.2d 1 (Handler, J., dissenting) (citations omitted).]

In plaintiffs ease, there is no question that he may be subject to serious consequences if he is classified as either Two or Three. Fundamental fairness is appropriately applied to reqdire procedural protections that will ensure that his classification, and its related consequences, are tailored to his particular characteristics and are not the product of arbitrary action.

X

Conclusion

We sail on truly uncharted waters, for no other state has adopted such a far-reaching statute. All other notification statutes apparently make public notification discretionary on the part of officials; the statute before us, however, mandates it. Despite the unavoidable uncertainty of our conclusion, we remain convinced that the statute is constitutional. To rule otherwise is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence. That the remedy has a potentially severe effect arises from no fault of government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.

There is no point in predicting the extent of potential ostracism, in avoiding the conclusion that some ostracism will result, or in calming concerns by observing that the offenders themselves are responsible for their plight for having committed their crimes in the first place, for that justification would apply to any excessive punishment by government. Here government has done all it can to confine that impact, allowing it only where clearly necessary to effect public safety, and if the Tier level selected and the methods of notification conform to the statute and its intent, as defined and limited herein, Tier Two and Tier Three public notification will be appropriately confined and applied only to those whose apparent future dangerousness requires it, and the statute will not only have survived constitutional attack, but in fact will operate as the Legislature intended. We must not prejudge society with the ogre of vigilantism or harassment, although its potential obviously calls for the vigorous steps suggested by the Attorney General, and we must not assume that those in responsible positions will violate the intent of this law by giving notification far beyond that which is authorized, and we must not assume that the press, for whatever reason, will disregard the notification confinement which this law requires.

We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish. What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses.

The judgment below as modified herein is affirmed. The constitutional and other attacks on the laws are rejected, except that upon application judicial review in accordance with this opinion shall be accorded prior to notification. The Attorney General’s Guidelines, as modified herein, are valid and effective immediately.

1 Citations to the supporting studies are omitted but may be found in the briefs of the Attorney General and the United States. Conflicting studies and interpretations, especially concerning the precise numbers, abound, but as noted above, the resolution of the controversy in this area is solely a legislative matter. Concerning the basic facts, however, there is no dispute: as far as society is concerned, sex offenses of the kind covered by the law are among the most abhorrent of all offenses; the relative recidivism rate of sex offenders is high compared to other offenders; treatment success of sex offenders exhibiting repetitive and compulsive characteristics is low; and the time span between the initial offense and re-offense can be long.

2 “Sex offenders” refers to those convicted of those offenses. The policy or legal justification for covering prior offenses only when the offender's conduct was repetitive and compulsive has not been explained or challenged. Precisely the same protection is available in these laws against those committing the same offenses regardless of the presence or absence of repetitive and compulsive conduct if the offense occurred after the adoption of the laws. Given the probability that a fair number of previously-convicted sex offenders may have been successfully and anonymously integrated in the community and therefore most severely affected by notification, the Legislature may have thought it fairer to limit notification only to those posing the greatest risk of reoffense, i.e., repetitive and compulsive offenders. We note that no such repetitive and compulsive conduct is required as a condition of registration for those who, at the time of the adoption of the laws, are incarcerated, on probation, on parole, or under some other form of community supervision even though their conviction may have antedated the laws' adoption. N.J.S.A. 2C:7-2b(2).

3 We note that neither the laws nor the Attorney General's Guidelines requires notice of other changes, e.g., employment or school address, vehicle and license number.

4 Although the laws literally appear to require notification only for registrants released from custody after the effective date of the law (NJ.S.A. 2C:7-6) while authorizing it for all registrants (presumably including prior offenders) (NJ.S.A. 2C:7-5), the Guidelines to some extent suggesting a similar construction (Guideline II, Statutory Responsibilities), the case has been argued by all parties and amici on the assumption that notification is required of all those required to register, regardless of the date of conviction, and not just those registrants "to be released from incarceration.” NJ.S.A. 2C:7-6. We believe this is a fair construction of the law and accept it as the likely legislative intent.

5 The Attorney General, in accordance with the statute, has added several significant factors to the risk assessment, all designed to assure the risk is not underestimated. The Guidelines’ list of factors, however, fails to include several required by the statute that could potentially point either way. Most important is the statutory factor requiring consideration of the offender’s “behavior in the community following service of sentence.” Although some important aspects of that behavior are included in the Guidelines' factors, the statutory factor itself— "behavior in the community following service of sentence" — is not, and its generality and potential effect on the Tier decision substantially diminished. Obviously, for those convicted some time ago, that factor could be the most significant of all, even though not determinative, in assessing likelihood of recidivism, and in some cases the only factor suggesting a low level of risk. While its relevance and strength are undoubtedly affected by the long-term risk of reoffense, the statutes require that it be considered before any Tier decision is made. Similarly, the statutory factor requiring consideration of "psychological or psychiatric profiles” is included in the Guidelines only as potential support for a high-risk assessment. The Guidelines place it as one of the factors in determining Tier Three classification, its consideration limited to whether the "profiles indicate a high risk of recidivism." The statute, however, is neutral. It is listed as a separate factor "relevant to risk of re-offense” and described as "whether psychological or psychiatric profiles indicate a risk of recidivism.” NJ.S.A. 2C:7-8b(5). Clearly, the statutory intent is to use those profiles on their merits in support either of a low-risk assessment or a high-risk assessment and not, as the Guidelines seem to require, only in support of a high-risk assessment.

We note also the provisions for community notification in the Guidelines apparently not in conformance with the statute that requires, for Tier Three notification, notice "designed to reach members of the public likely to encounter the person registered.” N.J.S.A. 2C:7-8c(3). The methods of notification set forth in the Guidelines include "community meetings, speeches in schools and religious congregations,” as well as "such other methods as determined by the prosecutor with the input of local law enforcement." Guideline VI, Methods of Community Notification. The category suggests notification of the entire community regardless of the likelihood of encountering the offender, while the statutory requirement of "likelihood to encounter the offender” is nowhere mentioned. It is obviously a difficult standard to implement but it must be complied with. In such implementation, prosecutors and local law enforcement personnel, in deciding upon the specifics of such community notification, must be guided by it.

We assume these variations from the statute, discussed later, are simply the product of the extreme time pressures imposed by the laws. They should be appropriately revised in accordance with this opinion.

6 Other laws were passed at the same time along with the Registration and Notification Laws. Chapter 127 increases the punishment of certain sex offenders; Chapter 129 eliminates credits against a term of imprisonment in the Adult Diagnostic and Treatment Center; Chapter 130 provides for community supervision for life for those convicted of certain sex offenses; Chapter 131 expands rights of crime victims, including requiring notification prior to an inmate's anticipated release upon expiration of the inmate’s maximum term (not provided for in prior law); Chapter 132 adds as an aggravating factor in capital sentencing proceedings the fact that "the victim was less than fourteen years old”; Chapter 134 redefines mental illness in order to make it possible to impose involuntary civil commitment on certain sex offenders; Chapter 135 requires the Department of Corrections and the Department of Human Services to provide written notice to prosecutors of the anticipated release of certain sex offenders, and requires the prosecutor to notify the Office of Victim and Witness Advocacy for the purpose of informing victims of such anticipated release. Those laws include many other provisions, some also related to the problems of sex offenders.

7 The analysis of this issue is discussed infra at 51, 662 A.2d at 392 n. 12.

8 Whether a seizure is unreasonable is determined by balancing the nature of the intrusion with the underlying government interest. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). We conclude that the minimal intrusion involved in appearing quarterly or annually at the local police station for registration is greatly outweighed by the compelling government interest in protecting the public which underlies this statute. Further, because plaintiff has no reasonable expectation of privacy in his fingerprints, photograph or matters of public record, the requirement to provide such information as part of the registration process does not constitute a search. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67, 79 (1973); Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900, 905 (1973).

9 Most states have adopted sex-offender registration statutes. Ala.Code § 13A-11-200 (1994); Alaska Stat. §§ 12.63.010, 18.65.087 (1994); Ariz.Rev.Stat.Ann. §§ 13-3821, 41-1750(B) (1995); Ark.Code Ann. § 12-12-901 (Michie 1994); Cal.Penal Code § 290 to 290.7 (West 1995); Colo.Rev.Stat.Ann. § 18-3-412.5 (West 1995); Conn.Cen.Stat. §§ 54-102r (1995); Del.Code Ann. tit. 11 § 4120 (1994) ; Fla.Stat. ch. 775.21 (1995); .Ga.Code Ann. § 42-9-44.1 (Michie 1995); Idaho Code §§ 18-8301 to 8311 (1995); Ill.Rev.Stat. ch. 730 para. 150/1 (1995); Ind.Code § 5-2-12-1 to 12 (1995); Kan.Stat.Ann. § 22-4902 to 4909 (1995); Ky.Rev.Stat.Ann. § 17.510 (Baldwin 1995); La.Rev.Stat.Ann. § 15:540 to 549 (1995) ; Me.Rev.Stat.Ann. tit. 34-A, §§ 11003, 11004 (West 1994); Mass.Gen. Laws Ann. ch. 22C, § 37 (1995); Minn.Stat. § 243.166 (1995); Miss.Code Ann. § 45-33-1 (1995); Mo.Rev.Stat.Ann. § 566.600 (1995); Mont.Code Ann. § 46-23-501 to 507 (1994); Nev.Rev.Stat. § 207.151 to .157 (1993); N.H.Rev.Stat.Ann. § 632-A:12 (1994); N.D.Cent.Code § 12.1-32-15 (1993); Ohio Rev.Code Ann. § 2950.01 (Baldwin 1995); Okla.Stat.Ann. tit. 57 § 581 to 587 (1995); Or.Rev. Stat. §§ 181.508, 181.518 (1994); R.I.Gen.Laws § 11-37-16, (1994); S.D.Codified Laws Ann. § 22-22-30 to 39 (1995); Tenn.Code Ann. § 40-39-101 to 108 (1994); Tex.Civ.Stat.Code Ann. § 6252-13c.l (West 1995); Utah Code Ann. § 77-27-21.5 (1994); Va.Code Ann. §§ 19.2-298.1 to 3, 19.2-390.1 (Michie 1995); Wash Rev.Code Ann. §§ 9A.44.130, 4.24.550 (1995); W.Va.Code § 61-8F-1 to 8 (1994); Wis.Stat.Ann. § 175.45 (1995); Wyo.Stat. § 7-19-301 (1995). A few states have legislation pending. Mich.Comp.Laws Ann. § 28.731 (West 1995) (effective October 1, 1995); N.Y. Senate Bill 11B (1995). Of these, the following states provide, in their statutes, some form of community notification: Alaska, Arizona, California, Connecticut, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Montana, Nevada, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Virginia, and Washington. New Jersey's statute is unique in that it is the only one in which community notification is mandatory (for those in the highest risk category) rather than up to the discretion of local officials.

10 Amicus Diaz contends that our interpretation of the State Constitution's Ex Post Facto Clause should not necessarily follow the United States Supreme Court's interpretation of the federal clause. Amicus bases this argument on the contention that New Jersey adopted the Ex Post Facto Clause in 1947, and intended to implement it as federal law interpreted the clause at that time. We reject that suggestion and hold that like its federal counterpart, the State Ex Post Facto Clause cannot be violated without the imposition of punishment.

11 A history of the extra-judicial circumstances surrounding the limitation of the Ex Post Facto Clause to criminal cases in Calder, supra, is found in William W. Crosskey, The True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U.Chi.L.Rev. 539 (1947).

12 It should be noted that in Halper the Court stated that the Government could "seek[] and obtain[] both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding,” so long as the cumulative punishments were authorized, Halper, supra, 490 U.S. at 450, 109 S.Ct. at 1903, 104 L.Ed.2d at 503, but that "when the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding,” the protections of the Double Jeopardy Clause are triggered. Id. at 451 n. 10, 109 S.Ct. at 1903 n. 10, 104 L.Ed.2d at 503 n. 10. If, therefore, the registration and notification laws impose punishment, the Double Jeopardy Clause protection against multiple punishments for the same offense would be triggered, because such punishment would be imposed in a second proceeding. But see, Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. -, -, 114 S.Ct. 1937, 1958, 128 L.Ed.2d 767, 791 (1994) (Scalia, J„ dissenting) (concluding that there is no multiple punishment component of the Double Jeopardy Clause); United States ex rel. Marcus v. Hess, 317 U.S. 537, 555, 63 S.Ct. 379, 389-90, 87 L.Ed. 443, 455 (1943) (Frankfurter, J., concurring) (concluding that “where two ... proceedings merely carry out the remedies which Congress has prescribed in advance for a wrong, they do not twice put a man in jeopardy for the same offense"). Halper clearly indicates that successive proceedings constituting two punishments for the same conduct violate double jeopardy even if authorized by the same statute. We need not, and do not, decide whether the court’s advice to future offenders, upon sentencing or acceptance of plea, that they are subject to the registration and notification laws would have the constitutional effect of imposing both "punishments" in the same proceeding for double jeopardy purposes.

13 The primary contentions of the government, disposed of at the outset of the Court's opinion, were that the excessive fines clause applied only in criminal proceedings — this proceeding was admittedly a civil in rent forfeiture proceeding — and applied only to criminal punishment. The Court disagreed.

14 The Mendoza-Martinez test has been used in many of the recent cases dealing with registration and notification laws. The attraction of such an apparent solution to the sometimes difficult problem these cases present is strong. In Artway, supra, 876 F.Supp. at 692, for instance, which held the notification laws before us unconstitutional, both parties apparently took the position that Mendoza-Martinez did not apply. The court disagreed. Its use of the Mendoza-Martinez "test,” however, is unpersuasive, its rationale being that the rejection of Mendoza-Martinez never occurred in the ex post facto context. But see Bae, supra, 44 F.3d at 496 (rejecting Mendoza-Martinez in ex post facto context). The clear thrust of repeated Supreme Court decisions is that the Mendoza-Martinez "test” has been rejected in all contexts other than those that present the question whether the proceedings are civil or criminal, the question whether Fifth and Sixth Amendment rights are triggered by the finding that, no matter how labeled, the proceedings are in effect criminal proceedings.

15 The factors are:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. [Mendoza-Martinez, supra, 372 U.S. at 168-69, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661 (footnotes omitted).]

16 As the Court stated,

A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].”

[Bell, supra, 441 U.S. at 538, 99 S.Ct. at 1873-74, 60 L.Ed.2d. at 468.]

17 We note that the dissent continues the misapplication of Mendoza-Martinez despite its clear rejection by the Supreme Court in Halper and Austin. Those two cases provide the test, used in this opinion, for determining whether the provisions of a statute impose punishment in violation of the additional punishment part of the Ex Post Facto Clause, the multiple punishment part of the Double Jeopardy Clause, the Cruel and Unusual Punishment Clause, and the Excessive Fines and Penalties Clause; and they explicitly reject the Mendoza-Martinez test for that purpose. The cases cited by the dissent in support of the proposition that Mendoza-Martinez should be used here do not involve those constitutional provisions but rather apply, or purport to apply, the Mendoza-Martinez test to determine whether proceedings are criminal or civil, whether the Due Process Clause has been violated, or whether a law constitutes a bill of attainder. United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) (bill of attainder); Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (bill of attainder); United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) (whether proceedings are criminal triggering self-incrimination privilege); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), United States v. Salerno, 481 U.S. 739, 107 , 95 L.Ed.2d 697 (1987) (all involving claims of violation of due process arising from pretrial incarceration); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (whether proceedings are criminal, constituting a second criminal prosecution in violation of the Double Jeopardy Clause, but not involving the question whether the second proceeding constitutes "punishment” in violation of the multiple punishment aspect of double jeopardy). It should be noted, however, that even when Mendoza-Martinez is allegedly applied, its use as a practical matter, as the dissent notes, is limited to its last two factors, those factors being the functional equivalent of the Halper rule.

18 Because the laws do not inflict punishment, plaintiffs plea agreement is not violated by subjecting him to the registration requirement, and its associated notification. Although the defendant must be aware of all penal consequences of a guilty plea, not every collateral consequence need be disclosed at the time the plea is accepted. State v. Heitzman, 107 N.J. 603, 527 A.2d 439 (1987). Because these laws are not punitive, the registration and notification requirements are collateral consequences of defendant’s guilty plea.

19 In accordance with NJ.S.A. 2C:7-8d, the Attorney General has developed procedures for implementation of the community notification. Organizations and members of the public receiving notification under Tiers Two and Three, according to the Guidelines, should receive the offender’s name and a recent photograph, along with a physical description, the offense for which he or she was convicted, address, place of employment and/or schooling, and vehicle license plate. Guideline VI, Methods of Community Notification.

20 As noted in Snyder v. Mekhjian, 125 N.J. 328, 342, 593 A.2d 318 (1991) (Pollock, J., concurring), the confidentiality interest "has not fared as well as ... autonomy.” Most courts addressing the right to confidentiality have applied a balancing, or intermediate, standard of review. See National Treasury Employees Union, supra, 25 F.3d at 242, 243 n. 2; Doe v. Attorney Gen. of the U.S., 941 F.2d 780, 796 (9th Cir.1991); Igneri v. Moore, 898 F.2d 870, 873 (2d Cir.1990); Walls, supra, 895 F.2d at 192; Fraternal Order of Police, supra, 812 F.2d at 110; but see Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.1995) (applying strict scrutiny). Some courts, however, apply heightened scrutiny if the information involved is considered "fundamental," Walls, supra, 895 F.2d at 192, or “sensitive,” Doe, supra, 941 F.2d at 796.

21 Although federal law, effective September 13, 1997, will impose some restrictions on the release of information contained in state motor vehicle records, it will permit release if specifically authorized under state law and if related to public safety. 18 U.S.C.A. § 2721(b)(14).

22 The Court did not purport to quantify exactly the privacy interest involved. The Court did note, however, that although courts of appeal have agreed that there is some privacy interest in nondisclosure of a home address, the courts have divided over the weight to accord that interest, with some labelling it as "significant” or "important,” and others as "minimal.” Department of Defense, supra, 510 U.S. at - n. 8, 114 S.Ct. at 1015 n. 8, 127 L.Ed.2d at 338 n. 8; see id. at - n. 4, 114 S.Ct. at 1018 n. 4, 127 L.Ed.2d at 341 n. 4 (Ginsburg, J., concurring) (emphasizing that the interest has been generally appraised as "relatively modest”).

23 In support of that distinction, the Court noted the "web of federal statutory and regulatory provisions that limits the disclosure of rap-sheet information.” Reporters Committee, supra, 489 U.S. at 764-65, 109 S.Ct. at 1477, 103 L.Ed.2d at 790. That careful and limited pattern of disclosure not only fit the definition of privacy, by restricting access to the information, but ”evidence[d] a congressional intent to protect the privacy of rap-sheet subjects, and a concomitant recognition of the power of compilations to affect personal privacy that outstrips the combined power of the bits of information contained within.” Id. at 765, 109 S.Ct. at 1477, 103 L.Ed.2d at 790.

Although there is no such web of restrictions on the disclosure of the information at issue in this case, and although Reporters Committee involved the statutory, and not the constitutional, meaning of privacy, id. at 762 n. 13, 109 S.Ct. at 1476 n. 13, 103 L.Ed.2d at 789 n. 13, we nevertheless believe that the Court's analysis may be applied to the facts before us because of the active compilation and dissemination of information under Tiers Two and Three.

24 The United States Supreme Court has not held that the confidentiality aspect of the right to privacy is a fundamental constitutional right deserving of the highest level of scrutiny. See supra Section VI.

25 While we have decided that the Guidelines do not meet the statutory definition of administrative rules, we assume that, even if that definition were satisfied, the Legislature could dispense with the APA notice and hearing requirements in a particular case. In re Adoption of Regulations Governing the State Health Plan, 262 N.J.Super. 469, 486, 621 A.2d 484 (App.Div.1993), aff'd, 135 N.J. 24, 637 A.2d 1246 (1994). The Legislature's intent to do so with the Attorney General’s Guidelines is clear. Not only is the time frame for adoption of the Guidelines inconsistent with the requirements of the APA, but the creation of the Notification Advisory Council suggests the intent to establish a more specialized procedure than that called for by the APA.

26 According to Professor Tribe, "[T]he Court evidently believed that any contrary result would have the unthinkable consequence of federalizing the entire state law of torts whenever government officers are the wrongdoers.” Laurence H. Tribe, American Constitutional Law 1397 (2d ed. 1988). That concern, however, is not present in the instant case. Finding a protectible interest in this case would not risk federalizing tort law. Plaintiff's claim is not a state defamation action. We are not here dealing with random disclosures, but with systematic disclosures following ex parte classification by local prosecutors. This is precisely the type of adjudication which so troubled Justice Brennan:

[T]he logical and disturbing corollary of this holding is that no due process infirmities would inhere in a statute constituting a commission to conduct ex parte trials of individuals, so long as the only official judgment pronounced was limited to the public condemnation and branding of a person as a Communist, a traitor, an "active murderer,” a homosexual, or any other mark that "merely" carries social opprobrium. The potential of today’s decision is frightening for a free people.

[Paul, supra, 424 U.S. at 721, 96 S.Ct. at 1170, 47 L.Ed.2d at 425-26 (Brennan, J„ dissenting).]

27 We note that "[fjor Blackstone 'liberty' ... was only one of the three ‘absolute rights of every Englishman.' The others were the right of property and the right of personal security, the latter term ... including 'reputation.' ” Henry P. Monaghan, Of “Liberty” and “Property”, 62 Cornell L.Rev. 405, 411-12 (1977) (citations omitted). We note, moreover, that "[o]ne does not need the authority of Blackstone for the proposition that without one’s reputation 'it is impossible to have the perfect enjoyment of any other advantage or right.'" Id. at 426 (citation omitted).