On April 7, 2025, the Supreme Court granted cert in Ellingburg v. United States to resolve a circuit split as to whether restitution is a criminal punishment and therefore subject to the requirements of the Ex Post Facto Clause. On the one hand, restitution is imposed by a court as part of sentencing and adds to a defendant’s post-conviction obligations, which certainly sounds punitive. But the primary purpose of restitution is to compensate victims for their losses, which operates more like a civil remedy. Regardless of the outcome, the court’s ruling will only directly affect a small number of defendants who were adversely impacted by a 1996 statute that retroactively extended the time for the government to collect on outstanding restitution judgments.
But the way in which the court may characterize restitution, as being criminal or civil, may have broader implications on sentencing procedure in federal cases.
Federal Statutes Governing Restitution
Restitution was designed to restore a victim to the status quo prior to the commission of the offense in question. In the early 20th century, federal courts recognized the ability to incorporate a payment obligation for actual damage or loss caused by the defendant’s acts into the terms of a probationary sentence, but courts only invoked this power on limited occasions and even then, did little to enforce collection.
In the Victim and Witness Protection Act of 1982 (VWPA) Congress vested courts with discretion to order restitution for losses in any Title 18 criminal case so long as the sentencing court also considered the “financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” Title 18, United States Code, Section 3663(a)(1)(B)(i).
In practice, given those considerations, courts only rarely imposed substantial restitution orders.
In 1996, Congress dramatically enhanced the law by enacting the Mandatory Victim Restitution Act (MVRA). Under the MVRA (which went into effect on April 24, 1996), the sentencing court was now required to impose restitution in the full amount of each victim’s losses and without regard to the defendant’s economic circumstances.
Relevant to the split at issue in Ellingburg, the VWPA and MVRA also differed regarding enforceability. Under both laws a restitution order operates as a lien in favor of the government against a defendant’s personal property.
But while that lien expires twenty years after the entry of judgment pursuant to the VWPA, under the MVRA, the liability period was extended to be twenty years after the entry of judgment or twenty years after the defendant’s release from prison, whichever is later.
The Ex Post Facto Clause of the Constitution states that “No Bill of Attainder or ex post facto Law shall be passed.” U.S. Const. art. I, §9, cl. 3. A law only violates the Ex Post Facto Clause if it (1) applies retroactively (i.e., to events occurring before its enactment) and (2) disadvantages the affected offender by altering the definition of criminal conduct or increasing the punishment for the crime.
The extended liability period created under the MVRA would only implicate the Ex Post Facto Clause if (as a threshold matter) restitution were deemed to be punitive in nature.
This article was originally published by ALM Law.com. To read the full article, please download the PDF below.