Facts of the Case

Provided by Oyez

In December 1995, Holsey Ellingburg, Jr. robbed a bank and was indicted in April 1996. He was convicted in August 1996 and sentenced to prison, along with an order to pay over $7,500 in restitution under the Victim and Witness Protection Act (VWPA). Following his release from prison in June 2022, having paid only about one-quarter of the original restitution amount, Mr. Ellingburg filed a motion arguing that enforcement of his restitution order was unlawful. He claimed that the applicable 20-year payment period under the VWPA had expired and that applying a longer restitution term and mandatory interest provision under the later-enacted Mandatory Victim Restitution Act (MVRA) violated the Ex Post Facto Clause.

The district court rejected Mr. Ellingburg’s arguments and upheld the restitution order. The U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s decision.

Questions

  1. Is criminal restitution under the Mandatory Victim Restitution Act (MVRA) penal for purposes of the Ex Post Facto Clause?

Conclusions

  1. Restitution required under the Mandatory Victims Restitution Act of 1996 (MVRA) is a criminal punishment for the purposes of the Constitution's Ex Post Facto Clause. Justice Brett Kavanaugh authored the unanimous opinion of the Court.

    The determination of whether a law imposes a criminal punishment or a civil remedy is a matter of statutory construction, based on the law’s text and structure. The text and structure of the MVRA make it clear that the restitution it mandates is a criminal punishment. The Act itself labels restitution as a “penalty” for a criminal “offense.” An order of restitution can only be imposed on a criminal defendant after a conviction, and it is imposed at sentencing along with other criminal punishments like imprisonment and fines. Furthermore, the government, not the victim, is the opposing party in the sentencing proceeding where restitution is ordered.

    The MVRA’s placement within the U.S. Code also signifies its criminal nature, as it is codified in Title 18, titled “Crimes and Criminal Procedure,” within chapters governing sentencing. This conclusion is consistent with precedent, which has understood MVRA restitution as part of a criminal sentence. While the Act also serves a nonpunitive goal of compensating victims, this does not change its character as punishment. Unlike in a civil proceeding, victims do not have the power to initiate or settle the restitution process; it is a penalty imposed by the court as part of the government's criminal prosecution.

    Justice Clarence Thomas authored a concurring opinion, joined by Justice Neil Gorsuch, arguing that the Court’s modern Ex Post Facto Clause test is flawed and should be replaced with the original understanding that the clause applies to any retroactive law imposing a coercive penalty for a public wrong.