Generally, the ex post facto clauses of both constitutions prohibit retroactive legislation that makes actions criminal after the fact, or increase the punishment for previously committed acts. State v. MacNab, 334 Or 469, 475, 51 P3d 1249 (2002); see, e.g., Stogner v. California, 539 US 607, 611-13, 123 S Ct 2446, 156 L Ed 2d 544 (2003) (discussing federal ex post facto clause). Article I, section 21, also prohibits retroactive alterations of evidentiary rules that make it easier for the state to obtain a conviction.

Article I, section 21, of the Oregon Constitution provides that "[n]o ex-post facto law * * * shall ever be passed[.]" As the Supreme Court explained in State v. MacNab, 334 Or 469, 475, 51 P3d 1249 (2002): "[T]he framers of the Oregon Constitution intended for Article I, section 21, to proscribe four categories of penal laws: those that punish acts that were legal before enactment; those that aggravate a crime to a level greater than it was before enactment; those that impose greater or additional punishment than that annexed to the crime before enactment; and those that deprive a defendant of a defense that was available before enactment."

We address first defendant's ex post facto arguments under the state constitution. Article I, section 21, of the Oregon Constitution provides that “[n]o ex-post facto law * * * shall ever be passed [.]” The Supreme Court explained in State v. MacNab, 334 Or. 469, 475, 51 P.3d 1249 (2002), that “the framers of the Oregon Constitution intended for Article I, section 21, to proscribe four categories of penal laws: those that punish acts that were legal before enactment; those that aggravate a crime to a level greater than it was before enactment; those that impose greater or additional punishment than that annexed to the crime before enactment; and those that deprive a defendant of a defense that was available before enactment.

Petitioner relies on both the Oregon and federal ex post facto clauses in support of that premise. Although the Oregon Supreme Court in the past has "construe[d] these particular state and federal provisions without distinguishing them," State v. Wille, 317 Or. 487, 502, 858 P.2d 128 (1993), its constitutional methodology requires that we first consider petitioner's argument under Article I, section 21, of the Oregon Constitution. SeeState v. MacNab, 334 Or. 469, 474, 51 P.3d 1249 (2002); see alsoState v. Fugate, 332 Or. 195, 210, 26 P.3d 802 (2001) (citing State v. Cookman, 324 Or. 19, 25, 920 P.2d 1086 (1996), for ex post facto analytical paradigm). In Fugate, the court analyzed the meaning of Article I, section 21, by examining its text, the case law interpreting it, and the historical circumstances surrounding its creation.

With respect to the third category, new laws increase punishment only when they impose some greater "form of detriment, restraint, or deprivation intended primarily to deter the offender and others from committing future criminal acts." State v. MacNab, 334 Or 469, 479, 51 P3d 1249 (2002). Petitioner acknowledges that the new rules prescribing board membership and voting requirements at issue in this case are not intended primarily to deter petitioner and others from committing future criminal acts. Nonetheless, petitioner argues, the new rules increase the punishment for the acts he committed because they increase the risk that he and others will remain incarcerated for longer than they would have under the rules in existence at the time of their criminal acts. Petitioner notes that, when the United States Supreme Court asks whether a change in parole board rules has violated the federal ex post facto clause, it considers the degree of that risk.

We emphasize, however, that that factor requires a showing of a stigma on the individual and not just a showing of some vague public disapproval of the behavior in question. This court recently addressed an analogous problem in State v. MacNab, 334 Or. 469, 51 P.3d 1249 (2002). In that criminal case, the defendant, a convicted sex offender, argued that requiring him to register as a sex offender under a sexual offender registration act was a "further punishment" for his original offense and, as such, was forbidden by the ex post facto prohibitions of the Oregon and federal constitutions.

The registration requirement is regulatory in nature, not punitive. State v. MacNab , 334 Or. 469, 481-82, 51 P.3d 1249 (2002) (rejecting an ex post facto challenge to the registration requirement, based on the statutory purpose and the fact that "[t]he operation of the law conforms to the legislature's declared purpose"); see also, e.g. , State v. Benson , 313 Or App 748, 770, 495 P.3d 717, rev den , 369 Or. 69, 499 P.3d 1281 (2021) ("The requirement that an offender acknowledge that they are aware of their registration requirements exists as part of a noncriminal regulatory framework, is individually regulatory in nature, and serves the noncriminal purpose of effectuating Oregon's sex offender registration system."). The provision that is now ORS 163A.100 was enacted in 2013.

Id. In State v. MacNab, 334 Or. 469 (2002), the Oregon Supreme Court examined Oregon's sex-offender registration statutes in light of the defendant's challenge to them under the Ex Post Facto Clauses of the United States Constitution and the Oregon Constitution. The defendant asserted enforcement of Oregon's sex-offender registration statute in his case violated the Ex Post Facto Clauses of the United States Constitution and the Oregon Constitution because the defendant was convicted of a sex crime in 1987, which was years before the sex-offender registration statutes were enacted. Id. at 469.

State v. Gallant , 307 Or. 152, 155, 764 P.2d 920 (1988). While in some earlier ex post facto cases it was "our practice" to "construe these particular state and federal provisions without distinguishing them," State v. Wille , 317 Or. 487, 501-02, 858 P.2d 128 (1993), in more recent cases "this court did not defer to the federal ex post facto analysis, but instead relied on the formulation established in Priest v. Pearce , 314 Or. 411, 840 P.2d 65 (1992), to ascertain the meaning of Article I, section 21," State v. MacNab , 334 Or. 469, 474, 51 P.3d 1249 (2002). Our Article I, section 21, case law has diverged in places from the Supreme Court's application of the analogous provision.

Moreover, that result is consistent with this court's past treatment of driving privilege sanctions. For example, in State v. MacNab , 334 Or. 469, 480, 51 P.3d 1249 (2002), this court included driver's license suspensions in a list of civil sanctions. In Burbage v. Department of Motor Vehicles , 252 Or. 486, 491, 450 P.2d 775 (1969), this court held that a petitioner challenging his driver's license suspension based on his refusal to take a breathalyzer test was not entitled to a jury trial because "no criminal penalty [was] possible."