Ellingburg v. United States
The Supreme Court unanimously ruled that restitution ordered under a federal crime victims law is criminal punishment, which means the Constitution's prohibition on retroactive criminal penalties applies to it.
The decision gives defendants a path to challenge restitution orders imposed under laws that did not exist when they committed their crimes, though the Court sent this particular case back to a lower court to decide whether the Constitution was actually violated here.
“When viewed as a whole, then, the MVRA makes abundantly clear that restitution is criminal punishment.”
The Court's bottom-line conclusion after surveying the statute's text and structure.
How it got here: Ellingburg challenged his restitution order as retroactively unconstitutional; the Eighth Circuit rejected the challenge, ruling MVRA restitution is not criminal punishment; the Supreme Court agreed to hear the case.
The Case in Depth
What happened
Holsey Ellingburg committed a federal crime before Congress passed the Mandatory Victims Restitution Act of 1996, which requires convicted defendants to pay money back to their victims. He was sentenced after the law took effect and ordered to pay $7,567.25 in restitution. He argued that being forced to pay under a law that didn't exist when he acted violated the Constitution's ban on retroactive criminal punishment, but the lower court rejected that argument at the starting line — by ruling that restitution isn't criminal punishment at all.
The question before the Court
Does a federal law requiring convicted criminals to pay money to their victims count as criminal punishment — and does the Constitution's ban on retroactive criminal laws therefore protect people who committed their crimes before the law existed?
The Court's answer
Yes — the Court unanimously held that restitution under the Mandatory Victims Restitution Act is criminal punishment, which means the Constitution's Ex Post Facto Clause (the rule against retroactive criminal laws) applies to it. The answer was clear from reading the law itself: the statute calls restitution a "penalty" for a criminal "offense," limits it to convicted defendants, imposes it at sentencing alongside other punishments like prison and fines, and puts the government — not the crime victim — on the other side of the courtroom.
The Court rejected the argument that restitution's goal of compensating victims makes it a civil remedy. Congress can have two goals at once (punishing offenders and helping victims), but as long as the law's text and structure show it was meant as punishment, the constitutional protection applies. The Court did not decide whether Ellingburg's specific restitution order actually violated the Constitution — that question goes back to the lower court.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People convicted of federal crimes who are ordered to pay restitution under laws enacted after they committed their offenses can now argue that the retroactive application violated their constitutional rights. Federal courts can no longer dismiss those claims at the threshold by calling restitution a civil remedy — they must evaluate whether applying the law backward in time was unconstitutional.
What changes now
The Eighth Circuit must now consider Ellingburg's actual Ex Post Facto Clause claim — whether applying the restitution law to conduct that predated its enactment violated the Constitution. The Supreme Court left open a separate government argument for affirming the original judgment, which the appeals court can take up on remand. The ruling does not automatically cancel Ellingburg's restitution obligation; it just unlocks the constitutional challenge that was previously shut out.
What this does not decide
The Court decided only the threshold issue — that MVRA restitution is criminal punishment — and did not rule on whether applying it retroactively to Ellingburg actually violated the Constitution. The Court also explicitly noted that restitution statutes structured differently could still qualify as civil rather than criminal.
Concurrences and dissents
How the Justices voted
Majority (1). Justice Kavanaugh (author).
Separate writings (2). Justice Thomas (author of a concurrence), joined by Justice Gorsuch.
Concurrence — Justice Thomas
Justice Thomas joined the majority in full but wrote separately to argue that the modern two-test, twelve-factor framework the Court uses to identify 'criminal punishment' for Ex Post Facto purposes has drifted far from the original meaning of the 1798 decision in Calder v. Bull. He argues that at the Founding, 'punishment for a crime' meant any coercive sanction imposed by the government to redress a 'public wrong' — an injury to the sovereign — regardless of whether a legislature labels the law civil or criminal. He urges the Court to abandon the modern multifactor tests in a future case and return to this simpler, historically grounded rule. Read the full concurrence →
How the Court got there
The legal reasoning, step by step
- The threshold question for an Ex Post Facto Clause challenge — the constitutional rule that bars retroactive criminal laws — is whether the law at issue imposes criminal punishment or merely a civil remedy. The Court said this is a question of statutory interpretation, answered by reading the law's text and structure.
- The Mandatory Victims Restitution Act's own language resolves the question: it labels restitution a 'penalty' for a criminal 'offense,' applies only to convicted 'defendants,' and specifies that it is imposed during 'sentencing.' Those terms are the vocabulary of criminal punishment, not civil debt collection.
- Structural features of the statute reinforce this: the law is housed in Title 18, 'Crimes and Criminal Procedure,' in a chapter titled 'Miscellaneous Sentencing Provisions.' A court ordering restitution must follow criminal procedure rules. If a defendant refuses to pay, the court can revoke supervised release or send him back to prison — a sanction available only in criminal proceedings.
- At sentencing, the government — not the crime victim — stands across from the defendant, and victims have no power to start or settle the restitution process on their own. That is the hallmark of a public prosecution, not a private civil lawsuit.
- The Court distinguished Smith v. Doe (a 2003 decision upholding sex-offender registration as a civil measure) because that law used distinctly civil procedures. The MVRA, by contrast, uses unmistakably criminal ones on every front.
- The Court acknowledged that the MVRA also aims to compensate victims — a non-punitive goal — but held that a dual purpose does not strip the law of its criminal character. Once the text and structure show Congress intended punishment, that ends the analysis, and the constitutional protection applies.
Doctrinal impact
Cases affected by this decision
Distinguishes Smith v. Doe (538 U. S. 84)
Sex-offender registration was civil because it used civil procedures; the MVRA uses criminal ones throughout.
Reaffirms Manrique v. United States (581 U. S. 116)
The Court pointed to Manrique as already treating MVRA restitution as part of the criminal sentence.