Arthur v. United States ( 2021 )


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    DISTRICT OF COLUMBIA COURT OF APPEALS
    No. 19-CF-5
    ROBERT L. ARTHUR, APPELLANT,
    V.
    UNITED STATES, APPELLEE.
    Appeal from the Superior Court
    of the District of Columbia
    (CF3-18394-16)
    (Hon. Truman A. Morrison, Motion Judge)
    (Hon. Geoffrey Alprin, Trial Judge)
    (Argued November 18, 2020                                  Decided July 1, 2021)
    Bryan P. MacAvoy for appellant.
    Chrisellen R. Kolb, Assistant United States Attorney, with whom Jessie K.
    Liu, United States Attorney at the time, and Elizabeth Trosman, Elizabeth H.
    Danello, and Elizabeth C. Kelley, Assistant United States Attorneys, were on the
    brief, for appellee.
    Before GLICKMAN and THOMPSON, Associate Judges, and FISHER, Senior
    Judge.
    THOMPSON, Associate Judge:        After a bench trial, the Superior Court
    convicted appellant Robert Arthur of failure to register as a sex offender from May
    20, 2015, to November 9, 2016, in violation of the District of Columbia Sex
    2
    Offense Registration Act of 1999 (“SORA” or “the Act”). 1 Before trial, appellant
    moved unsuccessfully to dismiss the charge on the ground that, as applied to him,
    the SORA requirements amount to retroactive punishment in violation of the Ex
    Post Facto prohibition of the U.S. Constitution.        In this appeal, appellant
    challenges the trial court’s ruling denying his motion and seeks reversal of his
    conviction. 2
    We conclude that the alleged punitive effects that appellant cites either (i)
    are features of SORA or its implementing regulations that this court has previously
    considered in determining that the SORA scheme is civil and remedial, rather than
    punitive; or (ii) have been shown at best to be effects “on [appellant as] a single
    individual” 3 that cannot support a determination that SORA is punitive.       We
    therefore affirm appellant’s conviction of failure to comply with SORA’s
    registration requirements.
    I.
    1
    See 
    D.C. Code §§ 22-4001
     through 4017 (2012 Repl.).
    2
    Our review is de novo. Solomon v. United States, 
    120 A.3d 618
    , 620 (D.C.
    2015).
    3
    Seling v. Young, 
    531 U.S. 250
    , 262 (2001).
    3
    SORA provides in pertinent part that any “person who lives, resides, works,
    or attends schools in the District of Columbia, and who: committed a registration
    offense at any time and is in custody or under supervision on or after July 11,
    2000,” or “[c]ommitted a registration offense at any time in another jurisdiction
    and, within the registration period, enters the District of Columbia to live, reside,
    work or attend school[]” is a “sex offender” and must register under the statute and
    comply with periodic verification, reporting, and other requirements as established
    by the Court Services and Offender Supervision Agency (“CSOSA”). 
    D.C. Code §§ 22-4001
    (9)(B), (D), -4007, -4014 (2012 Repl.). “For the purposes of this
    requirement, a person has ‘committed’ a registration offense if he or she was
    convicted of the offense.” In re W.M., 
    851 A.2d 431
    , 436 (D.C. 2004); see 
    D.C. Code § 22-4001
    (3)(A). Registrants must provide personal identifying information,
    including fingerprints and photographs, and must report any change of address or
    workplace. 
    D.C. Code § 22-4007
    (a).
    Individuals who have committed first or second-degree sexual abuse, assault
    with the intent to commit rape, or similar offenses under the law of any state are
    designated as “Class A” offenders, see 
    28 C.F.R. § 811
    , Appendix A (CSOSA
    regulation listing sex offender registration offenses by class) and must comply with
    4
    SORA’s registration requirements on a lifetime basis.          
    D.C. Code §§ 22
    -
    4001(6)(E) and 4002(b)(1).      Lifetime registrants are required to verify their
    registration information on a quarterly basis. 
    28 C.F.R. § 811.9
    (a). District of
    Columbia regulations authorize CSOSA to adopt procedures and requirements for
    the verification of registration information, which may include a requirement that
    sex offenders “appear in person for purposes of verification” of registration
    information. 6A D.C.M.R. § 409.1(b); see also 6A D.C.M.R. § 409.2. 4 Any sex
    4
    CSOSA regulations provide that a sex offender has the option of returning
    the registration information form by mail or in person unless:
    (1) The sex offender is also on probation, parole,
    or supervised release or otherwise must report to
    CSOSA, and CSOSA directs the sex offender to verify
    the registration information in person;
    (2) CSOSA directs the sex offender to appear in
    person because the sex offender has previously failed to
    submit a timely verification or submitted an incomplete
    or inaccurate verification; or
    (3) CSOSA directs the sex offender to appear in
    person for the purpose of taking a new photograph
    documenting a significant change in physical appearance
    or updating a photograph that is five or more years old.
    
    28 C.F.R. § 811.9
    . Although generally “a sex offender shall not be eligible for
    relief from the registration requirements,” 
    D.C. Code § 22-4002
    (d), under 
    28 C.F.R. § 811.11
    (a), “[a] sex offender may be excused from strict compliance with
    the time limits set forth in these regulations if the sex offender notifies CSOSA in
    advance of circumstances that will interfere with compliance and makes alternative
    (continued…)
    5
    offender who knowingly violates any requirement of the Act “shall be fined not
    more than [$1,000], or imprisoned for not more than 180 days, or both.” 
    D.C. Code § 22-4015
    (a). SORA “authorizes the Metropolitan Police Department to
    inform the community about [sex offenders] through various means of public
    notification, including posting their photographs, names, and other personal
    information on the Internet.” W.M., 
    851 A.2d at 434
    .
    Appellant is subject to SORA’s lifetime registration requirement, having
    entered a guilty plea on October 22, 1991, in the Circuit Court of Maryland for
    Prince George’s County to one count of second-degree rape 5 and having come
    under supervision in the District of Columbia after July 11, 2000, and come to
    reside and work in the District of Columbia by 2008. 6 SORA did not become law
    until nearly nine years after appellant’s second-degree rape conviction. 7
    (…continued)
    arrangements to satisfy the requirements or, in the case of an emergency, notifies
    CSOSA as soon as the sex offender is able to do so.”
    5
    Appellant asserts that he entered a so-called Alford plea. North Carolina v.
    Alford, 
    400 U.S. 25
     (1970). The underlying charge was that appellant and a co-
    defendant forcibly raped a woman while threatening to stab her with a nail file.
    6
    According to the government’s opposition to appellant’s motion to dismiss,
    in 2005 appellant was under supervision in the District of Columbia (the
    “District”) while serving a sentence for distribution of marijuana and, by sometime
    in 2009, was advised by CSOSA he was required to register as a sex offender in
    (continued…)
    6
    It appears from the record that appellant regularly updated his registration in
    the District during the period from April 2012 to April 2015, receiving and signing
    notices from CSOSA reminding him that he was to report “in person” to CSOSA
    to update his registration on a quarterly basis. 8 In May 2015, however, CSOSA
    reported that appellant was in violation of his sex offender registration
    requirements. On November 9, 2016, Deputy Gregory Conner of the United States
    Marshals Service executed an arrest warrant for appellant at an apartment located
    at 1221 M Street N.W., where appellant’s mother, Evelyn Arthur, resides.
    Appellant answered the door and was allowed to explain to his mother, who is
    hearing impaired, what the warrant was for.          According to Deputy Conner
    appellant explained to his mother that “it’s because I didn’t register[,]” “it’s not
    their fault, it’s mine. I didn’t register.” Appellant Arthur then stated to his mother
    (…continued)
    the District based on his Maryland conviction. He first registered as a sex offender
    in the District in April 2012, after he pled guilty to felony contempt and escape in
    Case No. 2011-CF1-16609.
    7
    See D.C. Law 13-137 (July 11, 2000).
    8
    At appellant’s trial, a CSOSA representative testified that in-person
    registration typically takes 45 minutes to an hour. The testimony does not make
    clear whether this time estimate also applies to in-person visits to update or verify
    registration information.
    7
    that “I told them I’m not going to register for something that happened over 20
    years ago.”
    On October 12, 2018, appellant filed his Motion to Dismiss the SORA
    failure-to-update-registration charge. He argued that requiring him to register and
    maintain registration under SORA violates the Ex Post Facto Clause because it
    amounts to increased punishment for his having committed a sex offense prior to
    SORA’s enactment. He asserted that the SORA registration requirement has a
    punitive effect, to wit: (1) he was terminated from his employment in 2013 when
    his employer learned that he was required to register as a sex offender (an
    allegation as to which appellant provided no documentation); (2) his mother’s
    application for appellant to serve as her live-in aide in her public housing unit was
    rejected, pursuant to 
    24 C.F.R. § 960.204
     (a)(4) 9 and 14 D.C.M.R. § 6109.6(c), 10
    because appellant is subject to a lifetime sex offender registration requirement; (3)
    9
    
    24 C.F.R. § 960.204
     (a)(4) is a Department of Housing and Urban
    Development regulation providing that a public housing authority (“PHA”) “must
    establish standards that prohibit admission to the PHA’s public housing program if
    any member of the household is subject to a lifetime registration requirement under
    a State sex offender registration program.”
    10
    14 D.C.M.R. § 6109.6(c) provides in pertinent part that the District of
    Columbia Housing Authority “shall prohibit admission of any family that includes
    any individual who is subject to a lifetime registration requirement under any sex
    offender registration program.”
    8
    CSOSA requires appellant to report in person to the Sex Offender Registration
    Office at least quarterly; and (4) appellant suffers humiliation from having to
    explain repeatedly to friends and family why the government publishes his name
    and photograph on the sex offender registry website. Appellant asserted that the
    evidence that SORA has caused him to lose housing and employment opportunities
    and subjects him to in-person reporting distinguishes this case from the record in
    Smith v. Doe, 
    538 U.S. 84
     (2003) (holding that the registration requirement and
    notification system of the 1994 Alaska Sex Offender Registration Act did not
    constitute retroactive punishment prohibited by the Ex Post Facto Clause).
    The Superior Court denied appellant’s motion in a November 20, 2018,
    ruling. At the conclusion of the January 4, 2019, bench trial, the court found that
    appellant was a District of Columbia resident during the relevant period, that he
    “was required to register every three months” because of his status as a lifetime
    registrant, and that because “he did not do that [for the May 20, 2015, to November
    9, 2016, period], . . . he’s guilty of this offense.”
    II.
    9
    Under the Ex Post Facto Clauses of the Constitution, “[n]o . . . ex post facto
    Law shall be passed.” 11 They prohibit “[r]etroactive application of a law that
    inflicts greater punishment than did the law that was in effect when the crime was
    committed.” W.M., 
    851 A.2d at 440
    .
    As the Supreme Court explained in Smith, the framework for inquiry when it
    is claimed that a law is a forbidden ex post facto law is “well established.” 
    538 U.S. at 92
    . “If the intention of the legislature [in enacting the statute] was to
    impose punishment, that ends the inquiry.” Id.; that is, “[a] conclusion that the
    legislature intended to punish would satisfy an ex post facto challenge without
    further inquiry into its effects[.]” 
    Id. at 92-93
    . “If, however, the intention was to
    enact a regulatory scheme that is civil and nonpunitive, [the court] must further
    examine whether the statutory scheme is so punitive either in purpose or effect as
    to negate [the legislature’s] intention to deem it civil.” 
    Id. at 92
     (internal quotation
    marks omitted). And because courts “ordinarily defer to the legislature’s stated
    intent, . . . only the clearest proof will suffice to override legislative intent and
    transform what has been denominated a civil remedy into a criminal penalty.” 
    Id.
    (citation and internal quotation marks omitted).
    11
    U.S. Const. art. I, § 9, cl. 3; art. I, § 10, cl. 1.
    10
    Under the Alaska law that the Supreme Court considered in Smith, if an
    individual “was convicted of an aggravated sex offense or of two or more sex
    offenses, he must register for life and verify the information quarterly.” Id. at 90.
    The Court noted that Alaska made available on the internet the following
    information: the sex offender’s name, aliases, address, photograph, physical
    description, motor vehicle information, place of employment, date of birth, crime
    for which convicted, date of conviction, place and court of conviction, and length
    and conditions of sentence, as well as a statement regarding whether the offender is
    in compliance with registration-update requirements or cannot be located. Id. at
    91.
    The Supreme Court observed that the Alaska legislature had expressed its
    objective in the text of the Alaska statute, declaring that “sex offenders pose a high
    risk of reoffending,” identifying the purpose of the law as “protecting the public
    from sex offenders,” and determining that “release of certain information about sex
    offenders to public agencies and the general public will assist in protecting the
    public safety.” Id. at 93. The Court found that “nothing on the face of the statute
    suggests that the legislature sought to create anything other than a civil . . . scheme
    designed to protect the public from harm,” id., even though the statute’s
    registration provisions were codified in the State’s criminal procedure code, id. at
    11
    94.   The Court found that “even if the objective of the [Alaska statute was]
    consistent with the purposes of the Alaska criminal justice system, the State’s
    pursuit of it in a regulatory scheme [did] not make the objective punitive.” Id.
    The Court stated that in analyzing the effects of the Alaska statute, the most
    relevant factors are “whether, in its necessary operation, the regulatory scheme: has
    been regarded in our history and traditions as a punishment; imposes an affirmative
    disability or restraint; promotes the traditional aims of punishment; has a rational
    connection to a nonpunitive purpose; or is excessive with respect to this purpose.”
    Id. at 97, 99-100. The Court reasoned that although the notification provision of
    the Alaska statute “resembles shaming punishments of the colonial period,” id.,
    and notwithstanding the world-wide “geographic reach of the [i]nternet,” stigma is
    not “an integral part of the objective of the regulatory scheme” and “results not
    from public display for ridicule and shaming but from the dissemination of
    accurate information about a criminal record, most of which is already public.” Id.
    at 97-99, 105. The Court further observed that “[i]f the disability or restraint
    [imposed by the regulatory scheme] is minor and indirect, its effects are unlikely to
    be punitive.” Id. at 100. In concluding that the effects of the Alaska statute were
    not punitive, the Court reasoned that the statute’s obligations were “less harsh than
    the sanctions of occupational debarment, which [the Court had] held to be
    12
    nonpunitive” and that the law did not “restrain activities sex offenders may pursue
    but leaves them free to change jobs or residences” and to do so without permission
    or supervision. Id. at 100, 101. Rejecting the reasoning that the effects of the
    Alaska statute were harsher than occupational debarment because the statute was
    likely to make registrants completely unemployable (given that “employers will
    not want to risk loss of business when the public learns that they have hired sex
    offenders”), the Court observed that “[l]andlords and employers could conduct
    background checks on the criminal records of prospective employees or tenants
    even with the Act not in force.” Id. at 100. The Court saw in the record “no
    evidence that the [statute had] led to substantial occupational or housing
    disadvantages for former sex offenders that would not have otherwise occurred
    through the use of routine background checks by employers and landlords.” Id.
    In addressing whether the Alaska statute imposed an affirmative disability,
    the Court observed that on its face, it did not require registrant updates to be made
    in person and that the record “contain[ed] no indication that an in-person
    appearance requirement ha[d] been imposed on any sex offender subject to the
    [statute].” Id. at 101. As to the “length of the [lifetime] reporting requirement”
    and the claim that it “appear[ed] to be measured by the extent of the wrongdoing,
    not by the extent of the risk posed,” the Court was satisfied that the “broad
    13
    categories” employed by the statute 12 and “the corresponding length of the
    reporting requirement, [were] reasonably related to the danger of recidivism” and
    thus “consistent with the regulatory objective.” Id. at 102.
    The Court confirmed that a statute’s “rational connection to a nonpunitive
    purpose” (such as public safety) is the “most significant factor in [a] determination
    that the statute’s effects are not punitive.” Id. at 102. It explained, however, that a
    statute is “not deemed punitive simply because it lacks a close or perfect fit with
    the nonpunitive aims it seeks to advance.” Id. at 103. The question was not, the
    Court emphasized, “whether the legislature . . . made the best choice possible to
    address the problem it s[ought] to remedy.” Id. at 105. “Alaska could conclude,”
    the Court said, “that a conviction for a sex offense provides evidence of substantial
    risk of recidivism.” Id. at 103; see also id. at 103-04 (reasoning that where the
    regulatory restraint is a minor one such as registration and the posting of accurate
    information, the Ex Post Facto Clause does not preclude a State from dispensing
    with individual risk assessments and predictions of dangerousness, and making
    reasonable categorical judgments that, as a rule of universal application,
    “conviction of specified crimes should entail particular regulatory consequences”).
    12
    The Alaska statute differentiated between “individuals convicted of
    aggravated or multiple offenses and those convicted of a single nonaggravated
    offense.” Id. at 102.
    14
    The Court also held that “[t]he [lifetime] duration of the reporting requirements is
    not excessive.” Id. at 104.
    In W.M., this court applied Smith in determining whether SORA is punitive
    and whether its retroactive application therefore violates the Ex Post Facto Clause.
    See 
    851 A.2d at 440
    . We found it “clear and unequivocal” from the legislative
    history of SORA that the Council intended the SORA registration and notification
    requirements as “regulatory measures adopted for public safety purposes” rather
    than criminal punishment.       
    Id. at 441
    .     We concluded that “[t]he material
    registration and notification provisions of SORA . . . are comparable if not
    identical to . . . those of Alaska” and that Smith had settled the ex post facto issues
    presented: SORA does not inflict punishment. 
    Id. at 435, 446
    .
    III.
    Appellant does not ask us to overturn SORA, but instead to determine “that
    SORA violates the Ex Post Facto Clause as applied to [him].” At the same time,
    he argues that SORA is based on a flawed premise about the risk of recidivism, is
    excessive with respect to its stated purpose, and fails to serve any nonpunitive
    15
    purpose. Thus, notwithstanding the label appellant uses to describe his argument,
    he at least arguably is asserting a facial challenge to SORA as well as an as-applied
    challenge. See Doe v. Reed, 
    561 U.S. 186
    , 194 (2010) (“The label [a party gives to
    his challenge] is not what matters.”). 13
    For its part, the government emphasizes in its brief that this division of the
    court is bound by W.M. 14 Further, relying on Seling, 
    531 U.S. 250
    , the government
    urged at oral argument that because this court has already held in W.M. that SORA
    is not punitive, appellant’s as-applied challenge is foreclosed.
    13
    One court has aptly observed that “a claim can have characteristics of as-
    applied and facial challenges: it can challenge more than just [a party’s] particular
    case without seeking to strike the law in all its applications.” Green Party of
    Tennessee v. Hargett, 
    791 F.3d 684
    , 692 (6th Cir. 2015). And indeed the Supreme
    Court has instructed that “the distinction between facial and as-applied challenges
    is not so well defined . . . that it must always control the . . . disposition in every
    case involving a constitutional challenge.” Citizens United v. Fed. Election
    Comm’n, 
    558 U.S. 310
    , 331 (2010). The Court has also recognized that “facial
    challenges and as-applied challenges can overlap conceptually.” United States v.
    Supreme Court of New Mexico, 
    839 F.3d 888
    , 907 (10th Cir. 2016) (quoting Ctr.
    for Indiv. Freedom v. Madigan, 
    697 F.3d 464
    , 475 (7th Cir. 2012), and citing
    Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party
    Standing, 113 HARV. L. REV. 1321, 1336 (2000) (“Facial challenges are not
    sharply categorically distinct from as-applied challenges to the validity of
    statutes.”).
    14
    See M.A.P. v. Ryan, 
    285 A.2d 310
    , 312 (D.C. 1971) (“[N]o division of this
    court will overrule a prior decision of this court.”).
    16
    There can be found in a number of court decisions language suggesting,
    incorrectly we think, that Seling established that “ex post facto challenges cannot
    be brought on an as-applied basis.” People v. Tucker, 
    879 N.W.2d 906
    , 911 n.4
    (Mich. Ct. App. 2015). 15 A more precise description of the holding of Seling is
    that the Supreme Court “rejected the argument that a statute can be declared
    punitive ‘as applied’ to a particular person when the highest State court has already
    definitively construed the statute as civil.” In re Dutil, 
    768 N.E.2d 1055
    , 1065
    (Mass. 2002). 16 That is precisely the situation presented here; that is, this court,
    15
    See also, e.g., Doe v. Biang, 
    494 F. Supp. 2d 880
    , 887 n.7 (N.D. Ill. 2006)
    (Seling “held that a plaintiff cannot mount an as-applied ex post facto challenge.”).
    But see Garner v. Jones, 
    529 U.S. 244
    , 255 (2000) (“In the [Ex Post Facto Clause]
    case before us, respondent must show that as applied to his own sentence[,] the
    [change in] law created a significant risk of increasing his punishment.”).
    16
    In Seling, the Supreme Court reversed a Ninth Circuit determination that a
    habeas petitioner could challenge a Washington State statute authorizing the civil
    commitment of sexually violent predators on the ground that it was punitive “as
    applied” to him, in violation of the Ex Post Facto Clause. 
    531 U.S. at 253-254, 266
    . As the U.S. Supreme Court explained, the Washington Supreme Court had
    already held that the statute was not punitive, but the Ninth Circuit “reasoned that
    actual conditions of [Seling’s] confinement could divest a facially valid statute of
    its civil label upon a showing by the clearest proof that the statutory scheme is
    punitive in effect.” 
    Id.
     at 259 (citing 192 F.3d at 874). The U.S. Supreme Court
    rejected that reasoning; to hold otherwise, the Court said, would be to permit “an
    end run around the [State] Supreme Court’s decision that the [statute] [was] civil”
    even though no direct attack on the Washington court’s decision had been
    advanced. Id. at 263-64. It was in that context that the Court held that the habeas
    petitioner could not “obtain release through an ‘as-applied’ challenge to the
    Washington Act on . . . ex post facto grounds.” Id. at 263. The Court reasoned
    that an as-applied analysis that is dependent on the day-to-day “vagaries in the
    (continued…)
    17
    the highest court of the District of Columbia, has already definitively construed
    SORA as civil. Accordingly, we may not re-evaluate SORA’s civil nature by
    reference to the effect that it has on appellant as “a single individual.” Seling, 
    531 U.S. at 262
    .
    With this background, we proceed to consider appellant’s (seemingly) facial
    and as-applied challenges. Insofar as appellant asks us to revisit our conclusion in
    W.M. that the facial features of the SORA scheme that he decries are so punitive as
    to negate the Council’s remedial intent, we can agree that any record evidence
    about SORA’s “necessary operation” different from the features that were before
    us in W.M., or any amendments to SORA or its implementing regulations since
    W.M. was decided, could warrant revisiting our conclusion there. 17 Cf. State v.
    Williams, 
    952 N.E.2d 1108
    , 1112 (Ohio 2011) (considering claimed punitive
    (…continued)
    implementation” of confinement, which “extends over time under conditions that
    are subject to change,” “would prove unworkable” because it “would never
    conclusively resolve whether a particular scheme is punitive and would thereby
    prevent a final determination of the scheme’s validity under the . . . Ex Post
    Facto Clause[].”     
    Id.
       Seling confirmed the Supreme Court’s “express[]
    disapprov[al] of evaluating the civil nature of an Act by reference to the effect that
    Act has on a single individual.” 
    Id.
     at 262 (citing Hudson v. United States, 
    522 U.S. 93
     (1997)).
    17
    Appellant does not challenge our conclusion in W.M. that the Council
    intended SORA to be remedial civil legislation.
    18
    effects of sex-offender registration law because “[t]he statutory scheme ha[d]
    changed dramatically” and “markedly” since the court earlier found that the
    registration process “imposed . . . an inconvenience ‘comparable to renewing a
    driver’s license’”); Doe v. DA, 
    932 A.2d 552
    , 560-63 (Me. 2007) (remanding ex
    post facto challenge for further development of the record on the effects of the
    State’s sex-offender registration law, because the law had been amended, and had
    become more restrictive, after an earlier State Supreme Court decision holding that
    it did not violate the Ex Post Facto Clause). But we are satisfied that neither
    circumstance obtains here.     Since W.M. was decided, neither SORA nor its
    implementing regulations have been amended to add any of the requirements
    appellant complains of in this appeal.
    Rather, the features of the SORA registration and notification scheme about
    which appellant complains are ones that we already considered in W.M. Appellant
    asserts that SORA’s notification system is no longer passive; he highlights that
    private companies now send out sex offender alerts via email to individuals who
    may never have requested to receive that information. But in holding that SORA is
    not punitive and that its application to persons who committed sex offenses before
    it was enacted does not offend the Ex Post Facto Clause, 
    851 A.2d at 435-36, 446
    ,
    W.M. recognized that SORA authorizes both passive and active notification to the
    19
    public, 
    id. at 437
    . 18   We explained that we “do not ignore SORA’s active
    notification provisions, but as with the provisions allowing CSOSA to require in-
    person interviews, . . . we do not assume that they will be abused[.]” 
    Id.
     at 446
    n.19.    In addition, we recognized in W.M. that SORA “imposes registration
    requirements on sex offenders based on the nature of the offenses they committed
    rather than on an individualized assessment of their risk of recidivism,” 19 
    id.
     at
    18
    We explained that active notification entails “affirmatively informing
    persons or entities about sex offenders by any authorized means, including
    community meetings, flyers, telephone calls, door-to-door contacts, electronic
    notification, direct mailings, and media releases,” while “[p]assive notification”
    entails “making information about sex offenders available for public inspection or
    in response to inquiries” through, e.g., “Internet postings, making registration lists
    and information about registrants available for inspection at police stations and
    other locations, and responding to written or oral inquiries.” 
    Id. at 437-38
     (internal
    quotation marks omitted) (citing 
    D.C. Code § 22-4011
    (b)(1)(A), (B)).
    19
    Appellant cites statistics about the low recidivism rate of sex offenders,
    but relies on Department of Justice reports from 2003 that analyze data from earlier
    years. These reports were already extant when we held in W.M. that the rationale
    of Smith — that “a state reasonably ‘could conclude that a conviction for a sex
    offense provides evidence of substantial risk of recidivism’ that is sufficient
    without more to justify a regulatory response” — “applies with undiminished
    force” to SORA. W.M., 
    851 A.2d at 445-46
    .
    We note further that the Superior Court record shows that in 2011 appellant
    was charged in the District with assault with intent to commit first-degree sex
    abuse (but accepted a plea offer under which he was allowed to plead guilty to
    felony contempt and escape). While we afford appellant the presumption of
    innocence as to the 2011 charge, the fact that his 1991 second-degree rape
    conviction was followed by his being charged in 2011 with assault with intent to
    commit first-degree sex abuse, prevents him from showing by the “clearest proof”
    (continued…)
    20
    436; that “SORA allows CSOSA to compel registrants to appear in person for
    verifications and periodic updates; and that CSOSA has exercised this
    discretionary authority,” 
    id.
     at 444 n.16.20
    These determinations made in W.M. answer appellant’s claims about the
    facially “punitive” effects of the SORA statute and implementing regulations. We
    therefore are bound by W.M.’s conclusion that notwithstanding “cogent” objections
    to SORA’s effects “as stigmatizing, onerous, and unfair to former offenders who
    have rehabilitated themselves,” the “‘clearest proof’ hurdle” is not surmounted, 
    id.
    at 443 — i.e., those effects neither “negate [the Council’s] intention to establish a
    civil regulatory scheme” nor transform SORA’s civil remedies into criminal
    penalties. 
    Id. at 444
    .
    (…continued)
    that the Council’s concern about the risk of recidivism is unwarranted and that the
    SORA registration appellant commenced in 2012 is excessive.
    20
    We reasoned that “occasional in-person meetings may be necessary to
    effectuate SORA’s goals - for instance, in order to update a registrant’s photograph
    - and in our view they need not be so onerous in a jurisdiction the size of the
    District of Columbia as to amount to a significant affirmative disability.” 
    Id.
     We
    said that “[t]he speculative possibility, unsupported by the record before us, that
    CSOSA might abuse its discretion and impose an excessive personal appearance
    schedule does not persuade us that SORA ‘in its necessary operation’ subjects
    registrants to an affirmative disability or restraint.” 
    Id.
    21
    Appellant argues that the requirement, imposed by CSOSA in implementing
    SORA, that he and other registrants report to the sex offender registry office in
    person to provide quarterly verification information is “still an open point” not
    considered in W.M. To the extent appellant intends this as a facial challenge to
    SORA, he must satisfy the standard for a facial challenge: i.e., he must show that
    the in-person verification requirement is punitive and excessive “in all its
    applications.” Tilley v. United States, 
    238 A.3d 961
    , 969 (D.C. 2020). We are
    unpersuaded that the in-person verification requirement meets that standard. The
    circumstances described in 
    28 C.F.R. § 811.9
    , addressing when CSOSA is
    explicitly authorized to impose an in-person requirement, include circumstances
    (such as when the registrant has previously failed to submit a timely or accurate
    verification) in which a requirement of periodic in-person check-ins would seem to
    serve a non-punitive purpose. Cf. United States v. Parks, 
    698 F.3d 1
    , 6 (1st Cir.
    2012) (explaining that in-person verification establishes that the sex offender is
    still “in the vicinity and not in some other jurisdiction where he may not have
    registered”). Appellant has not shown that even as applied to him, the in-person
    verification requirement is excessive (and thus, a fortiori, he has not shown that it
    is excessive in all its applications). The record shows that in 2009, appellant was
    convicted in Maryland of failure to register under that State’s sex offender
    registration law, that he was residing in the District of Columbia by 2008 but failed
    22
    to register under SORA even after being advised by CSOSA that he was required
    to do so, and that he had a history as a “difficult to deal with” registrant and of
    balking at having to register in both the District and Maryland and asserting that he
    would not register despite what the laws required. 21 Further, appellant makes no
    claim that he sought a relaxation of the time limits of the quarterly in-person
    reporting requirement and was denied.          See 
    28 C.F.R. § 811.11
     (authorizing
    CSOSA to excuse a registrant “from strict compliance with the time limits set forth
    in these regulations”). For all these reasons, we have not been presented with the
    “clearest proof” that CSOSA’s authority to require in-person verification renders
    SORA a facially punitive scheme or that CSOSA has abused its authority. 22
    21
    Cf. State v. Gaskill, 
    817 N.W.2d 754
    , 758 (reasoning that even if
    requirement that a sex offender report his change to transient status within 3
    working days after he no longer had a residence was too stringent as applied to
    other registrants who were unable to comply or whose compliance was interfered
    with, Gaskill did not report his change until nearly 30 days after he was required to
    do so, and thus did not demonstrate facts showing that the effect of the law was
    punitive as applied to him), rev’d on other grounds, 
    824 N.W.2d 655
     (Neb. 2012).
    22
    We note in addition that the Superior Court record in Case No. 2011-CF1-
    16609 shows that through October 2013, appellant was on CSOSA-supervised
    probation following his convictions of felony contempt and escape. Thus, to the
    extent that appellant’s need to report to CSOSA in person affected his employment
    (the record shows that he was still employed as of April 2013), it is not clear that it
    was in-person visits for SORA verification, rather than in-person visits in
    connection with appellant’s supervised probation, that were problematic for him.
    23
    At oral argument, counsel for the government seemed to concede that even
    after a decision by the highest court of a jurisdiction that a statute is civil, an as-
    applied ex post facto challenge might lie if the punitive effects are alleged to
    burden a broad class of sex-offenders.         Appellant suggests that this is the
    circumstance here; he urges us to consider the “housing and employment
    restraints” he cites, much as the Sixth Circuit did before concluding that the
    Michigan sex offender registration statute “imposes punishment.” See Does 1-5 v.
    Snyder, 
    834 F.3d 696
    , 705 (6th Cir. 2016).
    Neither the government’s concession nor Snyder helps appellant’s cause. 23
    One of the effects of the Michigan statute that the Sixth Circuit graphically
    described (with the aid of a map of the extensive areas of Grand Rapids, Michigan
    that the law rendered off-limits to sex offenders) is that Michigan’s law so
    restricted where sex offenders may live, work, and loiter that “many of the
    [p]laintiffs have had trouble finding a home in which they can legally live or a job
    23
    We note that Snyder was in a posture different from the posture of this
    case: in resolving the challenge to the Michigan sex offender registration statute,
    the Sixth Circuit was writing on a clean slate, so to speak; it did not reference, and
    we are not aware of, a prior decision of the Michigan Supreme Court that
    determined that the law was a civil statute.
    24
    where they can legally work.” 24       834 F.3d at 698, 702.      Appellant has not
    documented any such broad impact with respect to the effects of SORA that he
    emphasizes: his own job loss and his disqualification as a live-in aide for his
    mother, who lives in public housing.
    As to appellant’s asserted job loss, we begin by observing that appellant has
    not presented data about the impact of SORA on employment prospects for SORA
    registrants generally or for a broad category of registrants, and — not having
    documented the reason for his termination from his job — has not shown that his
    employer (which apparently was Miller & Long Construction at the time appellant
    lost his job in 2013) had a general policy of not employing SORA registrants or
    lifetime registrants. We appreciate that appellant did not have an evidentiary
    hearing on his motion to dismiss the failure-to-register charge, but our point is that
    his proffered evidence regarding his job loss purportedly because of the SORA
    registration requirement is, even now, a mere assertion by counsel, unaccompanied
    by an affidavit, declaration, or documentary evidence suggestive of a broadly
    applicable policy. As we noted in W.M., consequences for a sex offender may
    24
    By contrast, and as we noted in W.M., under SORA, registrants are not
    prevented, for example, from residing, working, attending school, or traveling
    “wherever, whenever and with whomever they wish.” 
    851 A.2d at 450
    .
    25
    flow “‘not from [SORA’s] registration and dissemination provisions, but from the
    fact of conviction, already a matter of public record.’” 
    851 A.2d at
    444 n.15; see
    also Smith, 
    538 U.S. at 89
     (noting that the record contained no evidence that the
    Alaska statute “ha[d] led to substantial occupational or housing disadvantages for
    former sex offenders that would not have otherwise occurred”).                  Without
    documentation that appellant and many others have faced job termination based on
    SORA’s lifetime or other registration requirements rather than on their underlying
    convictions as sex offenders, appellant has not put before us the “clearest proof” of
    punitive effects that would be required to afford him relief on his ex post facto
    claim. Seling, 
    531 U.S. at 261
    .
    Likewise with respect to the evidence appellant has presented about his
    disqualification to reside in his ailing mother’s public housing unit to assist her as a
    live-in aide. We acknowledge that this is a serious and regrettable restraint, but it
    is “only one incident,” Smith, 
    538 U.S. at 100
    , i.e., the type of idiosyncratic effect
    that cannot support a claim that SORA is punitive. See Seling, 
    531 U.S. at 262
    (instructing that a court may not “[re]evaluat[e] the civil nature of an Act by
    referenc[ing] . . . the effect that [it] has on a single individual”); State v. Letalien,
    
    985 A.2d 4
    , 17 (Me. 2009) (“The ex post facto prohibition is intended to act as a
    check on the exercise of legislative authority as it affects broad categories of
    26
    persons, and is not intended to create an individual right to challenge a retroactive
    law based on the effect that the law has on each person’s individual
    circumstances.”); McGuire v. Strange, 
    83 F. Supp. 3d 1231
    , 1250 (M.D. Ala.
    2015) (“[I]diosyncratic effects cannot be used alone in upholding [an ex post facto]
    challenge.”). In other words, we may not decide this case based on how SORA’s
    requirements have affected appellant in his particular circumstances involving his
    mother. As to the more general restraint that appellant’s experience might be
    deemed to represent — appellant’s exclusion from public housing because he is a
    lifetime SORA registrant — “[t]he touchstone of [our] inquiry,” Peugh v. United
    States, 
    569 U.S. 530
    , 539 (2013), is whether appellant’s lifetime registration
    obligation creates “a significant risk of increasing his punishment [for his
    underlying sex offense],” Garner, 
    529 U.S. at 255
    . Appellant has not shown that
    lifetime registrants face a significantly increased risk of being unable to live in
    public housing, i.e., a risk that otherwise would not exist. Suffice it to say that the
    opportunity to live in public housing is severely limited even without SORA
    implications; according to the District of Columbia Housing Authority website, as
    of April 2020, the waitlist for public housing in the District was closed to new
    applicants       with        no         scheduled        time        to        reopen.
    27
    https://webserver1.dchousing.org/?page id=284#waitlist     https://perma.cc/988V-
    GF2A . 25
    IV.
    None of appellant’s claims warrants revisiting W.M. or enables appellant to
    overcome this court’s determination in that case that SORA is not punitive.
    Wherefore appellant’s failure-to-register conviction is
    Affirmed.
    25
    Moreover, the public-housing stock in the District of Columbia is a small
    fraction of the private housing stock. See Yesim Sayin Taylor, Taking Stock of the
    District’s Housing Stock: Capacity, Affordability, and Pressures on Family
    Housing,         D.C.        POL’Y        CTR.,      (Mar.        27,       2018)
    https://www.dcpolicycenter.org/publications/taking-stock https://perma.cc/WX4G-
    BAVP .