Ellingburg v. United States
Whether restitution under the Mandatory Victims Restitution Act (MVRA) constitutes criminal punishment subject to the Ex Post Facto Clause of the Constitution.
The Decision
Roberts
·
Alito
·
Sotomayor
·
Kagan
·
Gorsuch
·
Barrett
·
Jackson
·Decided January 20, 2026
Majority Opinion— Justice Kavanaugh
The Supreme Court unanimously held that restitution ordered under the Mandatory Victims Restitution Act of 1996 (MVRA) is criminal punishment for purposes of the Ex Post Facto Clause of the Constitution. The case involved Holsey Ellingburg, who committed his crime before the MVRA was enacted but was sentenced under the Act and ordered to pay $7,567.25 in restitution to victims. Ellingburg argued that applying the MVRA to him retroactively violated the Constitution's ban on ex post facto laws — laws that increase punishment for conduct that occurred before the law existed. The Eighth Circuit Court of Appeals had ruled against him, concluding that MVRA restitution was not criminal punishment.
The Court reversed the Eighth Circuit, finding that the text and structure of the MVRA make it abundantly clear that restitution under the Act is criminal punishment. Justice Kavanaugh's opinion pointed to numerous features of the law: it labels restitution as a "penalty" for a criminal "offense," it can only be imposed on a convicted criminal defendant, it is ordered at sentencing alongside other punishments like prison and fines, it is codified in the federal criminal code, and the government — not the victim — is the party opposing the defendant. The Court also noted that for misdemeanors, restitution can serve as the sole punishment, and failure to pay can lead to imprisonment. While the MVRA does aim to compensate victims, the Court explained that a law can serve both compensatory and punitive purposes — and as long as Congress intended to impose punishment, the Ex Post Facto Clause applies.
The practical effect of the ruling is that the MVRA cannot be applied retroactively to defendants who committed their crimes before the Act was passed, because doing so would violate the constitutional prohibition on ex post facto laws. The case was sent back to the lower court to consider additional arguments the government raised in defense of Ellingburg's original sentence.
Concurring Opinions
Justice Thomas
Justice Thomas, joined by Justice Gorsuch, agreed with the Court's decision but wrote separately to argue that the modern legal tests courts use to decide whether a law counts as "criminal punishment" under the Ex Post Facto Clause have strayed from the original understanding established in the landmark 1798 case Calder v. Bull. He explained that the current approach relies on two complicated multi-factor tests that largely depend on how a legislature labels a law — whether it calls it "civil" or "criminal," where it places it in the legal code, and what procedural protections it provides. Thomas argued this framework allows legislatures to sidestep the Constitution's protections simply through clever labeling, which defeats the purpose of the Ex Post Facto Clause.
Thomas proposed returning to what he believes was the original meaning of Calder: the Ex Post Facto Clause should apply to any law that imposes a coercive penalty — such as a fine, imprisonment, or loss of property — for a "public wrong," meaning an offense against the community enforced by the government on behalf of the sovereign. Under this view, it doesn't matter whether the government calls the penalty "civil" or "criminal"; what matters is whether the government is punishing someone for a public offense. This would extend Ex Post Facto protections to many nominally civil penalties, including administrative fines and forfeitures, which Thomas argued can be just as severe as criminal punishments. He urged the Court to adopt this simpler, historically grounded approach in a future case.
Background & Facts
Holsey Ellingburg, Jr. was convicted of a crime committed before the MVRA was enacted in 1996. A restitution order was imposed at his sentencing roughly 30 years ago, and the exact statute under which the original court ordered restitution is unclear from the judgment form. The government later sought to apply the MVRA's extended 20-year collection period to enforce the restitution order against Ellingburg.
Ellingburg challenged this retroactive application on ex post facto grounds, arguing that the MVRA imposes criminal punishment and therefore cannot be applied to conduct that occurred before the statute existed. The district court denied his challenge, and the Eighth Circuit affirmed, holding that the MVRA imposes only a civil remedy, meaning the Ex Post Facto Clause does not apply.
Notably, the U.S. government changed its position and now agrees with Ellingburg that MVRA restitution is criminal punishment. Because neither party defends the Eighth Circuit's ruling, the Supreme Court appointed amicus curiae John F. Bash to argue in support of the judgment below.
Why This Case Matters
This case has the potential to definitively classify MVRA restitution as criminal punishment for constitutional purposes, which would trigger Ex Post Facto Clause protections against retroactive application. The classification carries enormous downstream consequences: if restitution is criminal punishment, it may implicate the Sixth Amendment's jury trial right under Apprendi (requiring jury findings for facts that increase the restitution amount), potentially disrupting the entire federal restitution regime that has operated for decades without jury trials. Conversely, classifying it as civil could trigger Seventh Amendment jury trial concerns.
The case also matters for the broader question of how courts distinguish criminal from civil penalties, particularly when Congress folds compensatory remedies into criminal sentencing proceedings. The Court's opinion could affect how future legislatures structure restitution and victim-compensation schemes, and could influence the treatment of other obligations imposed at sentencing, such as conditions of supervised release.
The Arguments
The MVRA classifies restitution as criminal punishment because it is imposed as part of a criminal sentence, intertwined with other criminal punishments, and enforced with the threat of imprisonment. Since the MVRA was not in effect when Ellingburg committed his crime, applying it retroactively violates the Ex Post Facto Clause.
- Restitution is part of the criminal sentence under the MVRA, as confirmed by statutory text placing it in the 'Sentences' chapter and using phrases like 'sentenced to pay restitution'
- This Court in Paroline, Pasquantino, and Kelly called restitution a criminal punishment serving punitive and penological purposes
- Restitution can be the sole punishment for misdemeanors and is enforced through the threat of summary imprisonment, just like criminal fines
- The uniform pre-MVRA consensus of courts of appeals treated restitution as criminal punishment, and Congress legislated against that backdrop
Key Exchanges with Justices
Justice Jackson
“Isn't your key point that regardless of what happened 30 years ago, today your client is being held to the responsibilities of the MVRA, which was not in existence when he committed the crime?”
It allowed petitioner to establish that the MVRA is indisputably the statute being applied retroactively, regardless of what happened at the original sentencing.
Justice Alito
“Would you say that the primary function of restitution under this statute is penal or civil — is the primary function to punish, or to provide compensation to make victims whole?”
Petitioner conceded that Paroline said the primary purpose is compensation but argued the penal purpose is equally primary, and criminal punishments routinely serve multiple purposes.
Justice Kagan
“What about provisions allowing civil judgment offsets and victims returning years later to prove further damages — don't both seem very odd if the statute is primarily punitive?”
Petitioner argued that Congress's use of the term 'civil proceeding' in those very provisions shows it understood the sentencing process itself was not civil.
The government agrees that MVRA restitution is criminal punishment and asks the Court to vacate the Eighth Circuit's ruling, but urges the Court to resolve this as a matter of statutory construction under step 1 of the Mendoza-Martinez test without singling out any one feature, preserving arguments that extending the collection period does not increase punishment.
- The statute's text refers to restitution as a 'penalty' and 'sanction,' it is imposed on a criminal defendant at criminal sentencing with the United States as the adversarial party
- Congress legislated against a uniform backdrop of courts of appeals holding that predecessor statute restitution was criminal punishment
- The opinion should not single out any one feature but rely on all textual clues pointing in the same direction to avoid problematic spillover to other contexts
- Calling restitution civil would raise Seventh Amendment jury trial concerns, so constitutional avoidance does not support the amicus position
Key Exchanges with Justices
Justice Kavanaugh
“What should we say in the opinion to prevent the spillover effect you're concerned about — what are the key components?”
The government's detailed multi-factor response prompted Justice Kagan to quip that the suggestion was to 'throw in absolutely everything,' highlighting the government's desire for a narrow, fact-intensive holding.
Justice Alito
“The VWPA explicitly stated its purpose was to assist victims — if this turns on congressional intent, how much clearer could that be?”
It revealed tension in the government's position — they had to distinguish between Congress intending something to be punishment versus the purposes that punishment serves.
Justice Kavanaugh
“Even if this were civil, civil retroactivity isn't something we countenance without a clear statement under Landgraf, right?”
The government confirmed the Ex Post Facto Clause applies only to criminal punishment but agreed retroactive civil penalties would be unusual, noting Congress clearly intended retroactive application to the extent constitutionally permissible.
MVRA restitution is a compensatory civil remedy, not criminal punishment, because the statute operates as a mechanical tort-like compensation system focused entirely on victim loss rather than the defendant's culpability, and Congress folded it into criminal sentencing for efficiency rather than to impose punishment.
- The MVRA is a pure compensation regime — full restitution, no more, no less — with offsets for civil judgments and victim ability to petition for further damages, mirroring the tort system
- Unlike the VWPA, the MVRA does not allow courts to calibrate restitution based on culpability, deterrence, or the defendant's circumstances — hallmarks of criminal sentencing
- This Court's precedents hold that compensatory remedies are not punitive, and the MVRA is overwhelmingly compensatory on almost every metric
- The Sixth Amendment Apprendi problem posed by calling this criminal punishment is far more dangerous to the restitution regime than any Seventh Amendment concern from calling it civil
Key Exchanges with Justices
Justice Jackson
“Is there some indication that Congress intended to shift or depart from the well-established understanding that restitution under the predecessor VWPA was criminal when it enacted the MVRA?”
It exposed the difficulty of the amicus position: the shift from discretionary to mandatory restitution could be seen as making punishment more severe rather than less criminal.
Justice Kagan
“Compensation can be a form of punishment — forcing the defendant to confront the nature and extent of his harm is a powerful way of driving home wrongdoing, so saying 'it's compensation' doesn't end the inquiry.”
It revealed skepticism toward the amicus's central argument that compensatory nature alone removes something from the criminal punishment category.
Justice Gorsuch
“Could Congress have simply thought restitution is punishment but district courts weren't exercising discretion appropriately, so it made restitution mandatory in the same way it sometimes creates mandatory minimum prison sentences?”
The amicus struggled to refute this framing, falling back on the argument that mandatory compensation mirrors the tort system rather than the criminal system.
Precedent Cases Cited
Smith v. Doe
Cited to distinguish sex offender registration requirements, which the Court held were not punishment at all, from MVRA restitution which is explicitly labeled a penalty and imposed as part of a sentence.
Paroline v. United States
572 U.S. 434
Cited by both sides — petitioner for its characterization of restitution as criminal punishment serving punitive purposes, and amicus for its statement that restitution's primary purpose is compensation.
Kelly v. Robinson
479 U.S. 36
Cited for the Court's observation that courts of appeals had uniformly treated restitution as criminal punishment, forming the backdrop against which Congress later enacted the MVRA.
Apprendi v. New Jersey
530 U.S. 466
Cited to highlight the major downstream consequence of classifying restitution as criminal punishment: any fact necessary to increase the maximum restitution amount would require a jury finding, potentially disrupting the entire federal restitution system.
Kennedy v. Mendoza-Martinez
372 U.S. 144
Cited for the two-step test used to determine whether a statutory scheme is criminal punishment: step 1 asks whether Congress intended to impose punishment; step 2 asks whether the scheme is so punitive in purpose or effect as to negate any non-punitive intent.
Landgraf v. USI Film Products
511 U.S. 244
Cited for the principle that retroactive application of civil statutes is disfavored absent a clear congressional statement, suggesting that even if restitution were civil, retroactivity concerns would remain.
Feltner v. Columbia Pictures Television, Inc.
523 U.S. 340
Cited by amicus to argue that the Seventh Amendment jury trial analysis for the remedy phase is nuanced, and that copyright damages required a jury trial — suggesting damages-like restitution might too if classified as civil.
Tull v. United States
481 U.S. 412
Cited by amicus to argue that the Seventh Amendment does not necessarily require a jury for the remedy phase of civil proceedings, suggesting civil penalties could survive without jury determinations.