FAC Weekly Update 2026-01-20-Ex Post Facto Laws
Weekly update for January 20, 2026. This is recording number 350
Dear Members and Advocates,
Today, the Supreme Court of the United States handed down a decision in Ellingburg v. United States (Jan. 20, 2026), a case having nothing to do with the registry, but having to do with Ex Post Facto laws.
Justice Clarence Thomas joined the majority but wrote a separate opinion to emphasize what he views as the proper foundation of the Constitution’s Ex Post Facto Clause. He explained that the Clause does not prohibit all laws with retroactive effects, but only those that retroactively impose punishment. Tracing this principle back to Calder v. Bull (1798), Justice Thomas noted that an ex post facto law is one that punishes a person after the fact for conduct that has already occurred. He criticized modern legal tests that focus too heavily on whether a statute is “civil” or “criminal/punitive”, urging instead a return to a historical understanding of punishment—one that includes broad, coercive sanctions that would have been considered punitive at the time of the founding. His approach stresses substance over labels, directing courts to look at whether a law imposes real burdens or deprivations on liberty, rather than how the legislature describes it, and applying less restrictive standards than the Kennedy v. Mendoza-Martinez, factors that were used in Smith v. Doe (2003).
This reasoning has direct relevance to sex offender registration laws, particularly those applied retroactively to people convicted before such laws existed. For years, courts have relied on Smith v. Doe, in which the Supreme Court upheld Alaska’s registration scheme by concluding it was “civil” rather than punitive, and therefore not barred by the Ex Post Facto Clause. Justice Thomas’s analysis in Ellingburg, however, calls that framework into question. He encourages courts to examine whether a law is functionally punitive in practice. Modern registries impose burdens traditionally associated with punishment, including restrictions on movement, employment, residency, and participation in public life. Under the historical approach outlined in Calder, these kinds of restraints could qualify as punishment even if they are “civil” laws.
Justice Thomas’s analysis can easily be applied to the coercive nature of many registry requirements that impose restrictions on otherwise completely lawful behavior. These measures can be regulatory on paper, but in practice they can operate as ongoing punishment. His approach further emphasizes fairness and notice—core principles underlying the Ex Post Facto Clause—by underscoring that people should know the consequences of their actions at the time they act. Retroactive expansions of sex offender laws, including residency or proximity restrictions imposed years or decades after a conviction, are therefore especially vulnerable under this framework. The broader implications for sex offender litigation and policy are significant if courts adopt the historical test Justice Thomas describes.
Although this opinion in no way overrules Smith v. Doe (even though he cites to it several times), Justice Thomas’ opinion suggests an openness to reexamining or narrowing analysis when it comes to registry challenges under the Ex Post Facto clause, potentially inviting future legal challenges that argue modern registries are too punitive to continue to fly under the “it’s just a civil regulation” excuse.
As HB 45 and SB 212 continue to advance through the Florida Legislature, it’s becoming increasingly clear that these bills, if enacted, will almost certainly require a legal challenge. The scope and severity of the proposed restrictions – particularly those applied retroactively – raise serious constitutional concerns that cannot be ignored. When that happens, Justice Thomas’s opinion in Ellingburg may prove to be an important tool. While no single case guarantees success, Ellingburg strengthens the legal foundation for challenging laws like these.
Bottom line… if these bills pass, we will be ready.
Sincerely,
The Florida Action Committee
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I suggest a sit down with a senator, law maker, or any person of influence, to spend just a week with us, or sit down and hear some of our stories. No other group, even murderers, have people throwing rocks or shooting guns into our homes (Some exceptions), killing us “Just because we exist”, scratching our cars, harassing us and our families, restricting where we can live and where we can go or be around and a long list of others that I will not bore you with as we have all lived it on a daily basis.
That’s what our Legislative Committee does. If you are interested in helping the Legislative Committee, contact us
I can understand the argument that it is civil and not punishment. But if it were truly civil where is the point that a person can be a member of society again? A regular citizen pays a a fine or citation after six months or a year. And He or she gets to move on with their life. I did my time in Fla doc. Released in 2011 Moved to another State and be arrest free for 15 years But, I can’t have a normal life. I am a very handsome man meet some wonderful people Especially Beautiful woman with Intelligence Woman who want a man but guess what run my name or address through the computer and Some crap I did in 1991 pops up.
So my Questions is; if it’s civil where is the end date that I can finally move on with my life like the rest of the people who have been convicted of a felony. I am 55 years and 19 years old at conviction
Nice summary Op-Ed @FAC on this matter at hand here.
Please feel free to share it with the media.
Anything that acts like a duck and walks like a duck and quacks like a duck then it is a duck. So apply that to the registry. If by being no complaint get charged with a felony and back in prison the it is punishment.
Only if the duck chooses to identify itself (or others choose for it) as a duck despite all the qualities of a duck being present and let’s not talk about the breed of duck it is vs what it wants to be.
The Possible Beginning of the End?
Just a thought experiment. If the ex post facto reasoning presented by Thomas in that decision were to be adopted as law, it would make the registry in places like Florida unworkable in practice. In addition to state statues, the laws there allow variations to be implemented by cities and counties. Imagine how complex it would be to have local law enforcement tracking which registrants were subject to ordinances that were adopted at different times. A person who committed a crime in April would not be subject to a residency distance increased in May, but a person committing the same crime in June would. The effort required by law enforcement would be wonderfully huge.