Logo
Daily Brief
Following Why
Supreme Court Rules Restitution Is Criminal Punishment

Supreme Court Rules Restitution Is Criminal Punishment

Unanimous Decision Limits Government's Ability to Retroactively Extend Defendants' Repayment Obligations

Overview

For decades, federal courts disagreed on a fundamental question: Is court-ordered restitution a criminal punishment or a civil remedy? The distinction matters because the Constitution's Ex Post Facto Clause bars retroactive increases in criminal punishment—but not civil obligations. On January 20, 2026, the Supreme Court unanimously answered: restitution under the Mandatory Victims Restitution Act is plainly criminal punishment, and defendants cannot be held to payment terms that didn't exist when they committed their crimes.

The ruling resolves a circuit split that left defendants in some parts of the country subject to extended enforcement periods Congress enacted after their convictions, while defendants elsewhere enjoyed protection from retroactive changes. Federal defendants collectively owe over $100 billion in restitution, with roughly 91% of that balance considered uncollectible. The decision limits the government's reach over defendants sentenced before 1996 but leaves intact restitution obligations for crimes committed after the MVRA took effect.

Key Indicators

9-0
Unanimous Decision
All nine justices agreed restitution is criminal punishment subject to Ex Post Facto protections
$33.9B
Restitution Ordered (2014-2016)
Total restitution ordered against federal defendants in a three-year period
91%
Uncollectible Debt
Proportion of federal restitution balances the government cannot realistically collect
4-2
Circuit Split Resolved
Four circuits held MVRA restitution was penal; two held it was civil before today's ruling

People Involved

Holsey Ellingburg, Jr.
Holsey Ellingburg, Jr.
Petitioner (Prevailed at Supreme Court)
Brett Kavanaugh
Brett Kavanaugh
Opinion Author (Associate Justice, U.S. Supreme Court)
Clarence Thomas
Clarence Thomas
Concurring Justice (Associate Justice, U.S. Supreme Court)
Amy M. Saharia
Amy M. Saharia
Counsel for Petitioner (Partner, Williams & Connolly LLP)
John F. Bash
John F. Bash
Court-Appointed Amicus (Partner, Quinn Emanuel)

Organizations Involved

Supreme Court of the United States
Supreme Court of the United States
Federal Court
Status: Issued ruling

The nation's highest court, which resolved a circuit split over whether federal restitution qualifies as criminal punishment.

U.S. Department of Justice
U.S. Department of Justice
Federal Agency
Status: Supported petitioner

The federal agency responsible for prosecuting crimes and collecting restitution, which declined to defend the Eighth Circuit's ruling.

U.S. Court of Appeals for the Eighth Circuit
U.S. Court of Appeals for the Eighth Circuit
Federal Appeals Court
Status: Reversed

The federal appeals court whose precedent treating MVRA restitution as a civil remedy was overturned.

Timeline

  1. Supreme Court Rules Restitution Is Criminal Punishment

    Decision

    In a unanimous decision, the Court holds that MVRA restitution is plainly criminal punishment subject to Ex Post Facto protections, reversing the Eighth Circuit.

  2. Oral Argument Held

    Legal

    In an unusual proceeding, both Ellingburg's attorney and the government argue for reversal, leaving only a court-appointed amicus to defend the sentence.

  3. Supreme Court Grants Review

    Legal

    The Court agrees to hear the case, setting up a resolution of the disagreement between circuits.

  4. Ellingburg Files Supreme Court Petition

    Legal

    Ellingburg petitions the Supreme Court to resolve the circuit split over whether MVRA restitution is penal for Ex Post Facto purposes.

  5. Eighth Circuit Rejects Ellingburg's Challenge

    Legal

    The appeals court affirms continued restitution enforcement, citing binding precedent from <em>Carruth</em> that restitution is not criminal punishment.

  6. Government Demands Continued Payment

    Enforcement

    Ellingburg receives notice that he owes $13,476 in restitution (including interest) and must make monthly $100 payments until 2042 under the MVRA's extended enforcement period.

  7. Ellingburg Released from Prison

    Release

    After 25 years, Ellingburg leaves federal custody. He has paid $2,054 toward his restitution while incarcerated.

  8. Ellingburg's Original Restitution Period Expires

    Legal

    Under the law in effect when Ellingburg committed his crime, his 20-year restitution obligation would have terminated.

  9. Eighth Circuit Rules Restitution Is Civil

    Legal

    In <em>United States v. Carruth</em>, the Eighth Circuit holds MVRA restitution is a civil remedy, not criminal punishment, exempting it from constitutional protections like the Ex Post Facto Clause.

  10. Ellingburg Sentenced Under MVRA

    Sentencing

    District court sentences Ellingburg to 322 months in prison and orders $7,567 in restitution, applying the new MVRA provisions.

  11. Ellingburg Convicted

    Legal

    Jury convicts Ellingburg of bank robbery and using a firearm during a violent crime.

  12. MVRA Enacted

    Legislation

    Congress passes Mandatory Victims Restitution Act as part of the Antiterrorism and Effective Death Penalty Act, making restitution mandatory for certain crimes and extending enforcement to 20 years after release from prison.

  13. Ellingburg Robs Georgia Bank

    Crime

    Holsey Ellingburg robs a Savannah branch of First Union Bank of Georgia at gunpoint, taking $7,567.

  14. Victim and Witness Protection Act Signed

    Legislation

    Congress enacts first major federal restitution law, authorizing discretionary restitution as a criminal sanction with a 20-year enforcement period from entry of judgment.

Scenarios

1

Thomas Concurrence Becomes Majority View in Future Case

Discussed by: The Volokh Conspiracy, constitutional law scholars

Justice Thomas's concurrence, joined by Gorsuch, argues the Ex Post Facto Clause should apply to any 'coercive penalty for a public wrong'—including civil fines, administrative penalties, and traffic tickets. If three more justices adopt this view in a future case, nominally civil sanctions like regulatory fines or sex offender registration requirements could gain constitutional protection from retroactive increases.

2

Congress Amends MVRA Enforcement Provisions

Discussed by: Congressional Research Service, sentencing policy analysts

The ruling applies only to retroactive applications of the MVRA. Congress could respond by modifying future restitution terms or clarifying that extended enforcement applies only to crimes committed after enactment. Given the low collection rates on federal restitution, legislators may weigh victim compensation goals against constitutional constraints.

3

Wave of Challenges from Pre-1996 Defendants

Discussed by: National Association of Criminal Defense Lawyers

Defendants sentenced for crimes committed before April 1996 who are still subject to restitution enforcement may challenge their ongoing payment obligations. Courts will need to determine which specific MVRA provisions constitute retroactive punishment when applied to pre-enactment crimes.

4

Broader Ex Post Facto Challenges to Civil Penalties

Discussed by: Cato Institute, criminal justice reform advocates

The unanimous holding that a statutory label does not determine whether a sanction is punishment could encourage challenges to other retroactive laws labeled as civil. Sex offender registration requirements, civil asset forfeiture rules, and administrative penalty schemes may face renewed constitutional scrutiny under the framework articulated in <em>Ellingburg</em>.

Historical Context

Smith v. Doe (2003)

March 2003

What Happened

Two Alaska men convicted of sex offenses before the state's Sex Offender Registration Act took effect challenged their retroactive inclusion in the registry. The Supreme Court ruled 6-3 that because the registration requirement was regulatory rather than punitive, its retroactive application did not violate the Ex Post Facto Clause.

Outcome

Short Term

Upheld retroactive sex offender registration nationwide, establishing that legislative labels as 'civil' can shield laws from Ex Post Facto challenges.

Long Term

Created the framework defendants must overcome: prove 'the clearest proof' that a nominally civil measure is actually punitive. Several state courts later found their own registration schemes violated state constitutions.

Why It's Relevant Today

<em>Ellingburg</em> distinguished MVRA restitution from sex offender registration, finding that Congress's explicit integration of restitution into criminal sentencing—unlike Alaska's civil regulatory scheme—marked it as punishment. The case shows how legislative design choices affect constitutional outcomes.

Peugh v. United States (2013)

June 2013

What Happened

Marvin Peugh committed bank fraud in 1999 and 2000. By his 2009 sentencing, the Federal Sentencing Guidelines had increased his range from 30-37 months to 70-87 months. He argued applying the harsher guidelines violated the Ex Post Facto Clause.

Outcome

Short Term

The Court ruled 5-4 that sentencing under guidelines promulgated after the crime violates the Ex Post Facto Clause when the new version yields a higher sentencing range.

Long Term

Established that even advisory guidelines carry enough weight to trigger constitutional protection, reinforcing that substance matters more than form in Ex Post Facto analysis.

Why It's Relevant Today

<em>Peugh</em> set precedent that retroactive increases in sentencing consequences—even through supposedly non-binding guidelines—violate the Ex Post Facto Clause. <em>Ellingburg</em> extends this logic to restitution obligations that increase through statutory changes after conviction.

Austin v. United States (1993)

June 1993

What Happened

Richard Austin had his mobile home and auto body shop forfeited after selling two grams of cocaine. He challenged the forfeiture as an excessive fine. The government argued the Eighth Amendment's Excessive Fines Clause applied only to criminal proceedings.

Outcome

Short Term

The Court unanimously held that civil forfeitures qualify as 'fines' under the Eighth Amendment when they serve punitive rather than purely remedial purposes.

Long Term

Established that constitutional protections can apply to sanctions labeled 'civil' when their effect is punitive—the same principle <em>Ellingburg</em> now applies to restitution under the Ex Post Facto Clause.

Why It's Relevant Today

<em>Austin</em> demonstrated that courts look past legislative labels to determine whether a sanction is punishment. <em>Ellingburg</em> applies this approach to the Ex Post Facto Clause, finding that MVRA restitution's integration into criminal sentencing reveals its punitive character despite any civil features.

9 Sources:
+3
U.S. Supreme Court SCOTUSblog Reason (Volokh Conspiracy) Legal Information Institute Congressional Research Service FindLaw Government Accountability Office Local 12 SCOTUSblog