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.]
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.