Source: Florida Action Committee 1/21/26
[ACSOL note: This is well written and invites other organizations to come together to plan a way forward.]
Related article: Non-Punitive in Name Only: How Ellingburg v. United States Threatens Florida’s “Civil” Registry Model
The Supreme Court’s decision in Holsey Ellingburg v. United States (No. 24-482) should reopen a long-overdue conversation about the constitutional foundations of modern sex offender laws. In Ellingburg, the Court made clear that labels do not control constitutional analysis: when a legal consequence operates like punishment, is imposed as part of a criminal judgment, enforced through the criminal justice system, and carrying real, coercive consequences, it must be treated as punishment for purposes of the Ex Post Facto Clause. That reasoning directly undercuts the legal fiction that has insulated sex offender registration and notification laws from meaningful constitutional scrutiny for more than two decades.
Since Smith v. Doe, 538 U.S. 84 (2003) , courts have relied on a rigid civil-versus-criminal distinction to uphold increasingly severe registration schemes, even as those laws have expanded far beyond passive record-keeping. To compound; the Federal government, states, counties and municipalities have viewed Smith as a blank check to expand laws as much as they want to, all under the excuse that it’s “civil”. Today’s registries impose lifetime reporting, public shaming, housing and employment bans, in-person reporting at police stations, residency and proximity restrictions, internet use restrictions, and criminal penalties (felonies) for technical violations – even unknowing ones. These burdens sure look far more like punishment than regulation. Yet Smith rested on assumptions about limited scope, minimal restraints, and public safety benefits that no longer reflect reality and have since been disproved by decades of empirical research.
Ellingburg signals that courts must look at how laws function in practice, not how legislatures describe them. Like restitution in Ellingburg, sex offender laws are imposed because of a conviction, enforced through criminal sanctions, and deter, incapacitate and deprive liberty. These are classic hallmarks of punishment, regardless of legislative disclaimers.
Revisiting sex offender laws does not mean abandoning …
Is this a first real challenge to the Registry Laws?
This could be big!
In theory if you were convicted prior to July 27th 2006, the date Adam Walsh Act was signed, then any Registry obligations would revert back to what they were on the date of conviction. A larger question that needs to be examined is the states, such as South Carolina, where an individual can be labeled a Tier II at the state level (convicted in a State Court only for State charges) yet the PFR has reporting obligations as a Tier III because of federal law. How does Ellingburg offer relief on a state by state basis?
I reference the Adam Walsh inception date specifically because that is the date Congress delegated their powers to the Administrative State and the DOJ to retro-actively apply all registry laws to everyone with an applicable conviction. So does Ellingburg ask about ex post facto only or does it also create a way to challenge the Delegation Clause?
This is the best line from the opinion:
“When determining whether a law violates the Ex Post Facto Clause, the Court must evaluate whether the law imposes a criminal or penal sanction as opposed to a civil remedy.”
For us in the 6th now with the Does case, it is huge. We also have multiple cases already in front of the Michigan Supreme Court. No waiting years for cases to get there. I’m guessing that the lawyers and ACLU will file briefs with this new analysis and IN OUR FAVOR that came directly from a days old SCOTUS case as precedent.
MUST evaluate criminal or penal sanction VS CIVIL REMEDY. No more hiding behind legislative BS that the attorneys feed to the courts as a reason.
Though it didn’t overturn Smith, Smith as it existed 23 years ago does not exist today. The text and STRUCTURE of these registry laws today clearly impose criminal and penal sanctions, as well as follow every criminal and punishment structure that SCOTUS just shot down on ex post facto grounds here.
Now we aren’t talking pre 2011 at the 6th COA. We are talking anyone who committed such offense prior to these punishing laws.
My guess is that it is now “safe” to reverse their course, as the registration laws have officially been on the books for decades now, which means that the new argument will be that it is no longer retroactive if sentenced WHILE the registration laws were in existence.
Strict Liability offenses are reserved for CRIMINAL law!
Rulings Exposing Punitive Effects
People ex rel. Rivera v. Superintendent (2023): The New York Court of Appeals held that applying certain residency restrictions (under the Sexual Assault Reform Act, or SARA) to an individual whose crimes predated the law was punitive in effect. The court found that because these restrictions effectively prolonged the petitioner’s incarceration past his release date (due to a lack of “SARA-compliant” housing), they violated the Ex Post Facto Clause of the Federal Constitution. People v. Knox & Subsequent Dissent (2023): While the majority in People v. Knox (2009) upheld the registration of non-sexual offenses (such as kidnapping with no sexual motive), recent dissenting opinions from the New York Court of Appeals have argued that this “mismatch” between the law’s goal (public safety) and its application to non-sex offenses is indefensible and violates due process rights. People v. Allen (2023): An appellate court found that SORA’s strict verification requirements were unconstitutional as applied to homeless individuals. The court ruled that the law’s failure to account for those without a fixed address deprived them of due process, highlighting the law’s “punitive” burden on vulnerable populations. The Strict Liability Conflict
The “punitive” nature is most visible in the enforcement of Correction Law § 168-t:
Felony Penalties: A first failure to register is a Class E felony, and subsequent failures are Class D felonies. Some legal experts argue these penalties can be more severe than the original underlying offense. Strict Liability Standards: In cases like People v. Stevens, courts have ruled that the state does not need to prove a defendant “knowingly” failed to register, only that they did not. This strict liability standard means an unintentional error can lead to a mandatory felony conviction, a structure reserved for criminal, not civil, law. Despite these rulings, the Second Circuit Court of Appeals in Doe v. Pataki (1997) and subsequent cases continues to uphold SORA as a whole as non-punitive, allowing the state to maintain its civil classification while enforcing strict criminal penalties.
The unanimous Supreme Court decision in Ellingburg v. United States
(2026)
provides a powerful legal framework to argue that New York’s SORA can no longer be shielded by a “civil” label.
By ruling that restitution is “plainly criminal punishment,” the Court established that a sanction’s true nature—not its legislative name—determines if it is subject to the Ex Post Facto Clause.
Proof SORA Meets the Ellingburg “Punishment” Standard
Under the factors identified in Ellingburg, the 2005 SORA amendments align with criminal punishment in several key ways:
The Impact of “Strict Liability”
The 2005 amendments transformed a reporting violation into a strict liability crime, meaning an individual can be convicted of a felony without any “willful” intent to break the law. Under Ellingburg, this lack of “remedial flexibility” strongly suggests the law is intended to punish the individual rather than simply protect the public.
For the full legal analysis, you can read the official opinion on SCOTUSblog or the case summary at Oyez.
Here in floriduh we’re fighting proposed bill HB 212 and this decision might come in handy in our argument
@BM ;
Thank you for all your hard work and input keeping us aware of all the cases that relate to our upcoming hearing here in Michigan, after us I can see this being involved nationally,,,,
thanks again! And I hope the ACLU is reading your posts 😎
There is really nothing new about this decision, as it pertains to substantive changes in law verse alleged procedural changes in law. This also goes with bills of attainder ex post facto violation and against our constitutional guaranteed right to be fully restored back to full-time citizenship after pains have been endured. In most States, “registration” is found in the Unified Code of Corrections and never found in any criminal code or in any civil direct code. It is deemed quasi criminal and when civil penalties keep being imposed on a sentence that has been fulfilled, those civil penalties create a unwarranted double jeopardy matter, like implicated in Illinois decent in Illinois People v Malchow, the dissenting judge asks as to why no person has been charged 730 ILCS 150/10 violation as a separations of powers infringement, where it says if you lie, you are guilty, sounds like to me a legislation finding of guilty and not any judicial one. That or where it says 7 days in jail and a fine of 500 and still a prison term , so how is that not double jeopardy. Some of these matters were raised in Missior and upheld that a right to counsel can be attached when a tech violation occurs, but still counsel is denied or the new 3 years to life parole that create an unwarranted civil commitment while DOC reaps the rewards on illegal slavery, that first amendment protects from singling out a specific group. There can be no doubt registration is all about billions of money generated illegally.
Around 2012 a similar matter had arisen from Apprendi and still today not one person seems to get any relief.