Calling it What it Is: Restitution as a “Plainly Criminal” Punishment Under Unanimous SCOTUS opinion in Ellingburg v. United States

The Mandatory Victims Restitution Act (MVRA), enacted in 1996, requires defendants convicted of certain federal crimes to pay monetary restitution to the victims.  Defendants convicted of crimes that occurred prior to the 1996 MVRA have raised constitutional challenges to the imposition of MVRA restitution, arguing that retroactively increasing the penalty for a crime after it has already been committed violates the Ex Post Facto Clause of the Constitution. 

Previously, Federal Circuit Courts of Appeals split in deciding whether MVRA restitution was a criminal punishment subject to the Ex Post Facto clause (Third, Fifth, Sixth, and Eleventh Circuits) or a civil remedy seeking the nonpunitive and equitable goal of compensating crime victims and restoring them to the position they occupied before the crime, and therefore not subject to the Ex Post Facto clause (Seventh and Eighth Circuits).  In its January 20, 2026 unanimous opinion in Ellingburg, the Supreme Court resolved this split by holding that MVRA restitution is “plainly criminal punishment for purposes of the Ex Post Facto Clause,” and reinforcing the constitutional protections against retroactive penal legislation.

Background of the Ellingburg Case

Holsey Ellingburg, Jr. was convicted of a 1995 bank robbery (before the enactment of the MVRA in 1996). However, his sentencing occurred after the law came into effect and Ellingburg was sentenced to 27 years in prison and ordered to pay $7,567.25 in MVRA restitution. While incarcerated, Ellingburg paid down $2,054 towards his restitution obligation.  But when he was released from prison in 2022, the government claimed that he now owed $13,476 in restitution due to interest accruing on his unpaid debt.  Ellingburg challenged the enforcement of this restitution order, arguing that applying the 1996-enacted MVRA to his 1995 crime violated the Ex Post Facto Clause, which prohibits laws that retroactively increase the punishment for criminal acts.

Legal Journey

The United States District Court for the Western District of Missouri rejected Ellingburg’s challenge, holding that restitution under the MVRA was not considered criminal punishment and thus not subject to the Ex Post Facto Clause. This decision was affirmed by the United States Court of Appeals for the Eighth Circuit, which held that restitution under the MVRA was “designed to make victims whole, not to punish perpetrators” and therefore was “essentially a civil remedy created by Congress” and had only been “incorporated into criminal proceedings for reasons of economy and practicality.”

Supreme Court’s Analysis

The Supreme Court’s unanimous decision, delivered by Justice Kavanaugh, reversed the Eighth Circuit’s ruling.  The Court’s analysis focuses on the statutory text and structure of the MVRA, noting that it explicitly labels restitution as a “penalty” for a criminal “offense” and imposes it during sentencing alongside other criminal punishments. This characterization aligns restitution with traditional forms of criminal punishment, thereby subjecting it to the constraints of the Ex Post Facto Clause.

The Court emphasized that restitution is ordered only after a criminal conviction and is imposed at a sentencing proceeding where the government, not the victim, is the party adverse to the defendant. This procedural context further supports the view that restitution under the MVRA is punitive in nature.

Additionally, the Court highlighted that the MVRA is codified in Title 18, “Crimes and Criminal Procedure,” and that the statutory provisions authorizing restitution orders are contained in chapters related to sentencing provisions. This placement within the criminal code reinforces the punitive character of restitution.

Importantly, the Court clarified that “our ruling today does not mean that a restitution statute can never be civil,” but was based on the specific statutory text and structure of the MVRA.

Conclusion

Ellingburg v. United States is an important decision that has solidified constitutional rights of criminal defendants regarding restitution and the Ex Post Facto Clause’s prohibition of retroactive penal laws. By affirming that restitution under the MVRA is criminal punishment, the Supreme Court has offered a reminder of the judiciary’s vital role in safeguarding individual rights and maintaining the integrity of the Constitution in the face of legislative changes.