Petitioner Holsey Ellingburg Jr. committed bank robbery before Congress enacted the Mandatory Victims Restitution Act of 1996 (“MVRA”) but was sentenced after the statute became effective. The district court ordered Ellingburg to pay $7,567.25 in restitution under the MVRA.
Years later, Ellingburg challenged the continued enforcement of the restitution order under the Ex Post Facto Clause, arguing that the Government had retroactively subjected him to a more onerous form of criminal punishment. The Eighth Circuit rejected the challenge because circuit precedent treated MVRA restitution as compensatory rather than criminal punishment.
The Supreme Court unanimously reversed. Writing for the majority, Justice Kavanaugh explained that whether a statutory scheme imposes criminal punishment for Ex Post Facto purposes begins as a question of statutory construction focused on the statute’s text and structure. The MVRA makes clear that restitution is criminal punishment: it labels restitution a “penalty,” permits an order only after a criminal conviction, imposes restitution at sentencing alongside imprisonment and fines, and uses procedures applicable to criminal penalties.
The compensatory purpose of restitution did not change the result. A sanction can both compensate victims and punish offenders, and victims themselves cannot initiate or settle the federal restitution process as they could an ordinary civil claim. The Court therefore held that MVRA restitution is criminal punishment subject to the Ex Post Facto Clause.
The Supreme Court did not decide whether continued enforcement of Ellingburg’s restitution obligation violated the Ex Post Facto Clause. The remand preserved the Government’s alternative grounds for affirming. It remanded for consideration of the Government’s remaining arguments.
Justice Thomas, joined by Justice Gorsuch, concurred. Although agreeing with the result under existing precedent, Thomas argued that the Court should eventually return to the original understanding of Calder v. Bull, under which the Ex Post Facto Clauses would apply broadly to coercive punishment imposed for public wrongs rather than depending heavily on whether a legislature labels a sanction “civil” or “criminal.”
Certiorari to the Eighth Circuit
Opinion by Kavanaugh, joined by a unanimous Court
Concurring opinion by Thomas, joined by Gorsuch
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