About This Series
In January 2026, a unanimous U.S. Supreme Court held that federal criminal restitution is punishment for purposes of the Ex Post Facto Clause of the U.S. Constitution. Many registrants, families, and defense lawyers immediately asked the same question: does this decision reopen challenges to retroactive sex offender registration laws?
The honest answer is . . . partly, and mostly through the Indiana Constitution. This five-part series traces the history in order:
Where It Started: Smith v. Doe (2003), the U.S. Supreme Court decision holding registration civil.
Applying Smith to Modern Registries: the Sixth Circuit’s Snyder (2015) opinion and the Seventh Circuit’s Hope (2021) opinion.
The Newest Word: Ellingburg v. United States (2026), and what it said about registration.
Indiana’s Own Path: Article 1, Section 24 of the Indiana Constitution, from Doe v. O’Connor through Wallace and beyond.
Practice Pointers: raising and preserving an ex post facto challenge in Indiana.
Part 1: Where It Started: Smith v. Doe (2003)
Every ex post facto challenge to a sex offender registry begins with Smith v. Doe. In 2003, the Supreme Court held that Alaska’s registration law was civil regulation, not punishment. That decision still controls the federal question today, but it judged one statute, and modern registries look very different.
What Smith Decided
In 2003, the U.S. Supreme Court held 6-3 that Alaska’s Sex Offender Registration Act was civil and nonpunitive, so it could apply to people convicted before it was passed. The Court used a two-step “intent-effects” test. First, did the legislature intend to punish? Second, were the law’s effects so punitive that they overrode that civil intent? Only “the clearest proof” would suffice, and the Court found none.
The Court relied on features of the Alaska law. Registrants could live and work where they wished. They did not have to update their information in person. The Court compared the public website to a visit to an official archive of criminal records, and found that any stigma came from accurate information about a conviction rather than from public shaming.
Justices Stevens, Ginsburg, and Breyer dissented. Justice Ginsburg called the law “ambiguous in intent and punitive in effect.”
Only the Supreme Court Can Overrule Smith
A lower court cannot declare a Supreme Court precedent obsolete, even if later developments undercut its reasoning. Indiana courts are bound by Smith on the federal question.
That does not end the analysis. Smith’s second step asks whether a particular law’s effects are so punitive that they override the legislature’s civil intent. A different law, with different effects, can produce a different answer.
How Indiana’s Registry Compares to Alaska’s 2003 Law
Not every difference helps equally. Some of the features that seem most burdensome were present in Smith, too. Indiana’s registration law includes both residency and employment restrictions; Alaska’s law did not. Indiana also requires in-person registration; Alaska did not. Finally, Indiana now labels registrants with various designations, and many registrants must register for life with no opportunity for removal. Alaska’s law in 2003 did not contain such labels or permanent lifetime requirement.
In the next post in this series, I will discuss how federal appellate courts have applied Smith to modern registration laws.