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!
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FAC, if you need a volunteer, let me know. I’m still on the Florida registry and I left in 2008. My conviction was January 14, 1992. I never had a duty to register until the passage of the Jessica Lunsford Act . I’m ready to take on these vote grabbing wannabe do gooders. I will proudly stand up and fight to get my name and many others to get our names off the registry.
Justice Ketanji Brown Jackson said a few years ago that ‘they have to address the registry.’
DVC
It has been addressed many times, and mostly not in our favor, except for a few exceptions like Halloween decorations etc. Only major one I have ever seen was in Michigan and they cannot even figure things out. Ending the registry then putting the same people back on it did absolutely nothing.
Registry shouldn’t exist, but even if it does, why retro-actively apply to people who already took a plea? And what about the impacts on our families when a brick is thrown through our window and our grandmother or some other non-registrant is killed by said brick. And law enforcement says well maybe you shouldn’t live with your family if you want them to be safe.
Jack, I think DVC’s quote was referring to a need for the registry to be addressed by the Supreme Court specifically, rather than continue to rely on Smith v Doe.
I happen to agree with Justice Jackson here.
Jacob and Cherokee Jack
You are correct, Jacob! (good Biblical name)
When she made this comment it was expressly pointed to addressing the registry as a whole.
I do believe she understands that the registry is Constitutionally wrong and an infringement upon human rights.
I hate to sound like a negative Nancy here, but I’d like to point out that in Gundy v. United States, 588 U.S. 128 (2019), SCOTUS held that 42 U.S.C. § 16913(d) (i.e., SORNA) does not violate the nondelegation doctrine.
Granted, this was a separate issue than on whether the registry is punishment. But it is different because the liberal justices had been in the majority of this ruling. In Smith v. Doe, they were in the minority. Ruth Bader Ginsburg wrote the dissenting opinion in Smith v . Doe but signed the majority opinion here.
To make matters worse, we’d be trying to ask for John Roberts to undo the case that helped him get his position in the first place. At the time, he was the attorney made famous among anti-registry activists for his comparison between registering for the public registry to applying for a “Price Club” (Costco) membership.
Thomas is the last person remaining who was on the bench for Smith v. Doe, and he voted with the majority.
I don’t have high hopes for SCOTUS given the current ideological makeup of our current SCOTUS. Sure, the conservative wing ruled in our favor in Gundy but it was an outlier. They did not give a rip about us, they wanted to use Gundy to deregulate the EPA. We were cannon fodder.
You’re right that the current Court makeup looks daunting. While ideological considerations matter, this opens a door to challenge retroactive sex offender laws as punitive and provides a precedential legal path forward, where under Smith there was none (or it was extremely narrow).
FAC
What ever happened to the Does cases? There was a 1 and a 2, and a while back there was a post about it but heard nothing since. Did we abandon hope in those? Happy for any update good or bad or on hold? We were holding on the does for hope for years as one of the strongest cases we had for a while.
Thanks.
Does v. Glass, in the Federal Southern District of Florida, is scheduled for trial starting July 13.
The second case (Harper v. Glass) was concluded and it is why we are able to report certain things (like vehicles and temporary residence) online instead of in-person.
The infuriating thing is, the Justices know better than to compare S.O. Registration to “Costco” membership!
In all the things people can register for,
registering gives access, privileges and rights to something you would not have normal access to.
Registering to vote, gives one the privilege, right and perk to cast a vote.
Registering my car, gives me the privilege, right and perk to drive that registered car on the road.
Registering my child for school, gives him the privilege, right and perk to be a part of that school.
Registering my kid to play soccer, gives him the privilege, right and perk to play on that soccer team.
Registering products, like a dishwasher, gives privileges, rights and perks to have it warranted/recalled.
Those who do not register, do not get access to the additional privileges, rights or perks.
They are on the ones who are outside.
They can’t partake unless they’ve registered.
Registering as a S.O. does the complete opposite.
Registering as a S.O actually takes away.
It removes and takes away privileges.
It removes and takes away rights.
The issue against registering is even more compounded if one completed all sentencing.
What person would register to be a Costco member,
only never to be able to have any right to partake of its privileges or the right to enjoy its perks?
You forgot the point that a PFR is compelled to register, update it, and pay for said registration if possible. The others you mention are voluntary to register for. You don’t have to vote, drive a car, have your kid be a part of anything, or even register new items in your home. Those are voluntary choices.
The premise of your post is sound and makes sense, but let’s also address the method one does to take part in these.
It may be a good thought to walk through the door before another ignoramus does and closes it again with another frivolous case that becomes the next two decade legal book mark ..
This is very well written and argued. It reads like a statement in the “Reasons to Grant This Petition” section of a Supreme Court brief.
Great Commentary. I agree this from my opinion only. I am not a lawyer, seems to be the door opening, not ajar or cracked but open. Now how do we get a case to SCOTUS. That is the hard part.
One possible path to the U.S. Supreme Court is the SORNA regulations case. When the trial court finally makes a decision in the pending cross motions for summary judgment, that decision is sure to be appealed by the losing party to the 9th Circuit Court of Appeals. The next step, of course, would be a request for review by the U.S. Supreme Court. The litigators in this case are attorneys from the Pacific Legal Foundation that has won many cases in that court.
Janice
Would a win be for the entire U.S registrants or just certain states? I know many times one person files a lawsuit and it only effects that one person then everyone else has to hire a lawyer and use precedents. That doesn’t help the poor, out of work or homeless.
Jack, the answer to your question is probably up to the courts. But I believe plaintiffs are challenging the law both as-applied and facially.