Does the Ellingburg decision open the door to revisiting Ex Post Facto as it relates to sex offender laws?
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 public safety. It means restoring constitutional honesty. The Constitution does not permit the government to impose retroactive punishment by relabeling it regulation, nor does it allow courts to ignore the real-world effects of laws that permanently mark people as dangerous long after they have completed their sentences. Ellingburg reminds us that constitutional protections are not frozen in time and that precedent built on outdated and disproven assumptions must yield to evidence and experience.
If the Supreme Court is willing to acknowledge, as it did in Ellingburg, that substance matters more than form, then it should be willing to reexamine Smith v. Doe and the vast legal regime built upon it. FAC calls on our sister organizations and advocates around the country to come to the table and come up with a game plan. The door is now open; we just need to walk through it!
Discover more from Florida Action Committee (FAC)
Subscribe to get the latest posts sent to your email.
This article is the “smoking gun” that advocacy groups have been waiting for since 2003. For over two decades, Tallahassee has hidden behind the semantic shield of Smith v. Doe, treating “civil” as a magic word that makes the Constitution disappear. But with the unanimous January 20, 2026, ruling in Ellingburg v. United States, the Supreme Court just handed us a sledgehammer.
** substance Over Semantics**
The Ellingburg decision is a 9-0 rejection of the “legal fiction” that the state can relabel punishment as “remedial” to avoid the Ex Post Facto Clause. Writing for the Court, Justice Kavanaugh made it clear: if a consequence is imposed following a criminal conviction, enforced through the criminal justice system, and carries coercive penalties, it is plainly criminal punishment.
In Florida, the registry doesn’t just “walk and quack” like punishment—it’s a digital gallows:
The Punishment Loop: Florida’s registry is enforced not through civil fines, but through third-degree felonies for technical reporting errors.
The coercive Reality: Like the restitution in Ellingburg that “trapped” the defendant in debt for decades, the Florida registry traps 30,000 citizens in a state of permanent hyper-vigilance and social death.
The Finality Mirage: The state keeps “moving the goalposts” on old cases, retroactively adding residency and proximity restrictions that were never part of the original sentence.
The Thomas Concurrence: A Warning Shot
While the majority opinion was short and direct, Justice Clarence Thomas—joined by Gorsuch—filed a concurrence that should have every legislator in Tallahassee sweating. Thomas explicitly called into question the Court’s current Ex Post Facto test, arguing it allows legislatures to “manipulate” the Constitution through semantics. He is signaling a return to a broader, historical understanding of punishment that includes “any coercive penalty” meant to address a public wrong.
The Bottom Line
The Ellingburg decision is a definitive rejection of the “chicken” label Tallahassee has used to disguise its “duck”. If mandatory restitution is punishment because it’s part of a criminal judgment, then a lifetime of reporting, residency bans, and digital identifiers—enforced under threat of prison—is undeniably punishment.
The door isn’t just open; it’s been kicked off the hinges. It is time for the Florida Action Committee and every legal scholar in the state to march through it and force the courts to restore constitutional honesty to the Sunshine State.
None ya
Unfortunately, (And not to be a nay sayer) the other side will find some way to deny and delay, stretching out any court case. Look at the Smith vs. Doe cases that have been ongoing for years.
I hope and pray for the best, but in reality, I cringe every time we get a letdown (No fault of the lawyers, FAC or other hard-working heroes) We are in a David Vs. Goliath situation most of the time on major cases. The smaller cases like Halloween decorations are easier to win because cities do not want to spend tons of money out of their budget over a trivial matter to them.
When a powerful judge or a group of them finally admit the truth of the bad word (Punishment) then maybe eyes, hearts and freedom will be open season.
I am in the same status as Lauren NotBook. I wonder if there are enough with non-adjudication for us to get together and see if FAC could help us bring a case to try to get some relief?
The Syllabus for the ruling reads:
“Restitution under the MVRA is plainly criminal punishment for purposes of the Ex Post Facto Clause. Whether a law violates the Ex Post Facto Clause requires evaluating whether the law imposes a criminal or penal sanction as opposed to a civil remedy. That question is one “of statutory construction” that requires the Court to “consider the statute’s text and its structure.” Smith v. Doe, 538 U. S. 84, 92 (quotation marks omitted). When viewed as a whole, the MVRA makes abundantly clear that restitution is criminal punishment. The MVRA labels restitution as a ‘penalty’ for a criminal ‘offense.’ 18 U. S. C. §3663A(a)(1).”
“The Court’s precedents have understood restitution under the MVRA to be criminal punishment. See Manrique v. United States, 581 U. S. 116, 118. And the Court’s precedents on related issues further buttress the conclusion that MVRA restitution is criminal punishment. See United States v. Bajakajian, 524 U. S. 321, 328; United States v. One Assortment of 89 Firearms, 465 U. S. 354, 363–366.
“Finally, while Congress intended restitution under the MVRA to both punish offenders and compensate victims, victims cannot initiate or settle the restitution process as they would if it were a civil proceeding. The text and structure of the Act demonstrate that Congress intended restitution under the Act to impose criminal punishment.”
On page 4 of the rling: As the Government cautions, not everything that occurs at criminal sentencing or even that appears in a criminal judgment may necessarily be part of the punishment. See Tr. of Oral Arg. 22–23. But we need not explore that point further here because, for the reasons we have explained, MVRA restitution is criminal punishment.”
“Amicus relies heavily on Smith v. Doe, 538 U. S. 84. There, this Court considered a law requiring a defendant convicted of certain crimes to register as a sex offender. The Court held that the registration mandate was civil. The legislature adopted “distinctly civil procedures” for the imposition of registration requirements. Id., at 96 (quotation marks omitted). By contrast, to reiterate what we said above, MVRA restitution is labeled as a penalty, is codified in the criminal code, is predicated on a criminal conviction, is imposed against a criminal defendant, is sometimes imposed in lieu of other penalties, is ordered at sentencing where the United States is the adverse party, and can result in resentencing when the defendant refuses to pay. So Smith v. Doe does not control.”
Sounds like a lot of a double standard here when looking at this then looking at Smith v. Doe. But the big difference here is that the gov’t didn’t use that disclaimer that restitution isn’t meant to be punitive, which is what we hear with every registry law.
So D, What are thoughts on the July 2026 trial outcome?
Hi Fac, I light of this case, is there a way to revisit the Internet Identifiers case from a few years back or bring a new case?
I’m wondering if this could impact those of us who are forced to register who have never been convicted of a crime. My adjudication was withheld, but I’m required to register. If the registry is punishment (which it absolutely is) how can they punish us who have, technically, committed no crime? I understand that they’ve been able to force us to register because it’s “civil” and “not punative,” but I’m wondering if we win on Ex Post Facto, if that could ultimately result in some of us being removed?
Am I the only one wondering who posted the comment from dfh. Is this person with FAC or are they an Attorney? If not with FAC, can they be? Or, if an Attorney do you have contact information? We need all the help we can get. Pre 1991.
I don’t know of any lawyer by the name of dfhdfghfghjjhfgj. Their comment appears generated by an AI prompt.
Jacob
There are a “Ton” of lawyers on this forum. They call them “Armchair lawyers”. People who think they know more than a real lawyer. Most people do not realize that most judges were at one time a lawyer themselves.
On that point, lawyers are not gods, neither are judges, but judges have more power that decides your fate and outcome. A lawyer can have the most powerful case in history and still be struck down. Most cases can appeal and go over the local judge’s head, but on being removed from the register doesn’t seem to have that kind of system. I tried that and the buck stopped with the judge. Yes, you could do a Doe’s style case and go to the supreme court but look how many years that has been ongoing.