Ellingburg v. United States

    Issues

    Is restitution under the Mandatory Victims Restitution Act a criminal punishment, which would implicate the Ex Post Facto Clause of the Constitution, or a civil remedy?

    Oral argument:
    October 14, 2025
    Court below:
    United States Court of Appeals for the Eighth Circuit

     

    This case asks the Supreme Court to determine whether the Mandatory Victims Restitution Act is a criminal punishment, which would implicate the Ex Post Facto Clause of the Constitution upon retroactive application, or a civil remedy. Petitioner Holsey Ellingburg, Jr. was convicted of bank robbery and firearm use during a violent crime in August 1996 and sentenced under the Victim and Witness Protection Act, which capped restitution enforcement at twenty years after entry of judgment. However, Congress enacted the Mandatory Victims Restitution Act in April 1996 to extend the restitution enforcement period to twenty years after a defendant’s release from prison. Ellingburg argues that, in designing the Mandatory Victims Restitution Act, Congress made a criminal punishment, so retroactively applying it to increase his penalty would violate the Constitution’s Ex Post Facto Clause. Court-appointed attorney John F. Bash, invited to support the judgment below, argues that Congress did not clearly design the Mandatory Victims Restitution Act as a criminal punishment, so it is a civil remedy that does not implicate the Ex Post Facto Clause. The outcome of this case will have a major impact on the fairness of the restitution process for both criminal defendants and victims of crimes.

    Questions as Framed for the Court by the Parties

    Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause.

    Facts

    In December 1995, Petitioner Holsey Ellingburg, Jr. robbed a bank in Georgia at gunpoint.  In August 1996, a jury convicted Ellingburg of bank robbery and firearm use during a violent crime. The district court sentenced Ellingburg to approximately twenty-six years and ten months in prison, followed by five years of supervised release. The court also ordered Ellingburg to pay a $100 special assessment and more than $7,500 in restitution, which it deemed “criminal monetary penalties.”

    At the time of Ellingburg’s offense, the Victim and Witness Protection Act (“VWPA”) of 1982 required criminal restitution obligations to expire twenty years after the entry of judgment against a defendant. Therefore, Ellingburg’s restitution obligation was to terminate in November 2016 under the VWPA.  When Ellingburg was released, he had paid more than one quarter of his restitution obligation. However, in April 1996, Congress passed the Mandatory Victims Restitution Act (“MVRA”). Under 18 U.S.C. § 3613(b) of the MVRA, Congress extended the enforceability period for restitution orders. Thus, restitution obligations would now expire twenty years after a defendant’s release from imprisonment instead of twenty years from entry of judgment. Additionally, under § 3612(f)(1) of the MVRA, restitution orders now came with mandatory interest. 

    After Ellingburg’s release in June 2022, the government continued pursuing restitution payments from him under the MVRA’s longer enforcement period, with interest. Ellingburg contested the continued restitution enforcement efforts, filing a pro se motion to show cause in the U.S. District Court for the Western District of Missouri. Specifically,Ellingburg objected that applying the MVRA violated the Constitution’s prohibition on ex post facto laws because this application increased the punishment for his crime post-sentencing. Ellingburg further argued that his restitution liability term had expired in 2016. However, the district court held that applying the MVRA’s extended enforcement period retroactively to Ellingburg’s restitution order “did not violate the Ex Post Facto Clause.”

    Ellingburg appealed to the United States Court of Appeals for the Eighth Circuit, which affirmed the district court’s decision based on different reasoning. The Eighth Circuit relied on its binding precedent from United States v. Carruth, which held that restitution under the MVRA is not penal, or a criminal punishment, but is instead a civil remedy. Since the Ex Post Facto Clause only applies to criminal punishments, the court found that the retroactive use of the MVRA in Ellingburg’s case did not violate the Ex Post Facto Clause. The Eighth Circuit later denied Ellingburg’s petition for rehearing en banc.

    On October 25, 2024, Ellingburg filed a petition for a writ of certiorari with the Supreme Court of the United States. The Supreme Court granted certiorari on April 7, 2025, to resolve the circuit split on whether criminal restitution under the MVRA is penal for the Ex Post Facto Clause.

    Analysis

    THE LEGISLATIVE INTENT OF RESTITUTION UNDER THE MVRA

    Ellingburg argues that Congress clearly designed restitution as a criminal punishment, rather than a civil remedy, under the MVRA because it only penalizes crimes and is enforced through criminal law mechanisms. Specifically, Ellingburg highlights how restitution is only imposed by Congress under the MVRA when a defendant is “found guilty of an offense,” which indicates that restitution is a criminal penalty. Ellingburg points to the MVRA’s language, where Congress explains how restitution can be combined with other criminal penalties, including incarceration and criminal fines, in sentencing and is, in certain cases, the only penalty for crimes. Ellingburg also notes that Congress chose to enforce restitution under the MVRA through “classic criminal sentencing procedures” dictated by the Federal Rules of Criminal Procedure and under threat of further criminal punishments for willful nonpayment. In a section on punishing nonpayment, Ellingburg highlights Congress’s explicit reference to the “purposes of punishment and deterrence” that MVRA restitution serves. Ellingburg then points to the Supreme Court’s repeated confirmation that MVRA restitution is intended to serve as “criminal punishment” or have “penological purposes,” in Pasquantino v. United States and Paroline v. United States, respectively. Additionally, Ellingburg explains how MVRA restitution is not focused on compensating victims, because the MVRA is handled by criminal law mechanisms, regardless of whether the victim wants restitution and even when victims will not benefit from collection.

    Ellingburg further points to the MVRA’s textual and structural features, through which Congress “created a criminal punishment.” For instance, Ellingburg notes that Congress housed the MVRA in Title 18, labeled “Crimes and Criminal Procedure,” rather than in a civil procedure location. Congress, according to Ellingburg, also acknowledges that restitution is criminal punishment under the Ex Post Facto Clause by limiting the MVRA’s application to post-enactment sentences only “to the extent constitutionally permissible.” If restitution under the MVRA was a civil remedy, Ellingburg asserts that Congress would have no reason to include this caveat. Ellingburg then highlights Congress’s language choice in the MVRA, which differentiates restitution and damages “awarded in civil proceedings.” Ellingburg additionally notes that Congress calls MVRA restitution a “penalty,” a term that, throughout Title 18, typically denotes criminal punishments unless preceded by the word “civil.” Finally, Ellingburg argues that before and after the MVRA’s enactment, Congress, the Supreme Court, and the Department of Justice treated restitution as criminal punishment, evidenced by the Solicitor General’s view that retroactive MVRA restitution was a “penalty” violating the Ex Post Facto Clause. Thus, by ignoring legislative intent evident in the MVRA’s text and structure, Ellingburg asserts that the Eighth Circuit erred in finding restitution a civil remedy rather than a criminal punishment.

    The United States declined to defend the Eighth Circuit’s decision, supporting Ellingburg’s contention that restitution under the MVRA is a criminal punishment that implicates an Ex Post Facto Clause inquiry. Consequently, the Court invited John F. Bash to brief the arguments to defend the Eighth Circuit’s judgment. Bash counters that Congress did not clearly intend restitution to be a criminal punishment under the MVRA. While Bash agrees that courts must review legislative intent to determine whether a law is a criminal punishment, Bash highlights that, since Kennedy vs. Mendoza-Martinez, the Court must find “unmistakable” evidence that Congress’s only possible purpose for the law is punitive. Bash refers to this inquiry as a “clear-statement requirement.” Asserting that Ellingburg’s evidence is neither relevant nor dispositive to demonstrate legislative intent, Bash emphasizes that MVRA restitution fails the clear-statement requirement. Thus, Congress designed MVRA restitution as a civil remedy. Specifically, Bash argues that even though MVRA restitution is only imposed when a defendant is convicted of a crime, this is insufficient to show legislative intent of a criminal punishment. Bash highlights how civil sanctions, like losing voting and firearm rights, often follow criminal convictions, but their imposition after conviction doesn’t make them criminal punishments. Regardless of the criminal procedures enforcing restitution, Bash asserts that the MVRA’s structure is focused on victim compensation. Bash refers to Ellingburg’s reliance on Pasquantino and Paroline as “misplaced,” relying instead on Dolan v. United States.  In Dolan, Bash highlights that the Court found the MVRA’s “substantive purpose” was to compensate victims, a civil remedy. Although one section of the MVRA mentions punishment, Bash describes the MVRA as “victim-centric” given its repeated emphasis on making victims whole. 

    Bash rejects Ellingburg’s argument about MVRA’s placement in Title 18 since the Supreme Court already stated that a provision’s placement in the Criminal Code is not evidence of a criminal punishment. Further, since Congress intended to apply the MVRA retroactively, Bash argues that the principle of constitutional avoidance indicates that Congress did not intend for MVRA restitution to be a criminal punishment implicating the Ex Post Facto Clause. Despite Ellingburg’s assertion that “penalty” typically denotes criminal punishments, Bash highlights that the Supreme Court has found that a penalty can refer to civil sanctions. Rather, if Congress meant to denote a criminal punishment, Bash asserts that Congress would have used the term “criminal penalty,” as it has throughout Title 18 and “over 200 times in the U.S. Code.” Bash additionally focuses on the MVRA’s legislative history, noting that House and Senate reports both stress the MVRA’s goal of compensating victims, not punish defendants, which is consistent with a civil remedy. Bash also notes that historical uses of restitution as a criminal punishment before enacting the MVRA are irrelevant because Congress chose to limit most MVRA restitution orders to a victim’s actual losses. Finally, Bash contends that Ellingburg’s reliance on the Department of Justice’s treatment of the MVRA with respect to the Ex Post Facto Clause is irrelevant in evaluating congressional intent.
     

    THE PURPOSE AND EFFECTS OF RESTITUTION

    Even if the Court found that Congress designed restitution under the MVRA as a civil remedy, Ellingburg asserts that restitution still requires an Ex Post Facto Clause examination. Ellingburg contends that restitution is so punitive in its purpose and effect that it overrides Congress’s intent of creating a civil remedy and instead effectively imposes a criminal punishment. Ellingburg examines seven purpose-and-effect factors enunciated in Mendoza-Martinez—affirmative disability or restraint, history, a scienter requirement, traditional goals of the punishment, existence of a crime, nonpunitive rationales, and proportionality—to justify his contention. First, Ellingburg argues that MVRA restitution creates punitive restraints through constant probation officer oversight and enforcement backed by threats of additional punishments. Moreover, MVRA restitution creates affirmative disabilities, as most defendants cannot pay off restitution debts, yet still face punitive consequences from nonpayment ranging from delayed prison release, barred restoration of civil rights, and further imprisonment. Ellingburg distinguishes between historical forms of civil and criminal restitution, and notes how MVRA restitution requires a finding of scienter and follows a criminal conviction. Ellingburg additionally highlights the MVRA’s legislative history, which illustrates its retributive and deterrence functions. Finally, Ellingburg asserts how the MVRA “deviates” from the goal of compensating victims. In practice, Ellingburg explains that recovery is not limited to victims, courts and probation officers control enforcement, and victims rarely recover in full. Despite the compensatory rhetoric, federal data shows that roughly 91% of restitution debt balances are uncollectible. Thus, MVRA restitution functions as a punishment rather than as a civil remedy to compensate victims.

    Conversely, Bash contends that restitution is not punitive in its purpose and effect and, thus, does not impose a criminal punishment. While this Court generally requires the “clearest proof” to deem a statute punitive despite contrary legislative intent, even under a lower standard, MVRA restitution qualifies as a civil remedy, not criminal punishment. Bash first argues that MVRA restitution creates neither affirmative disabilities nor restraints because, despite Ellingburg’s claims, judges must consider and accommodate defendants’ financial circumstances. Bash also rejects Ellingburg’s historical arguments, citing them as “deeply flawed.” Citing “the Anglo-American legal tradition,” Bash argues that restitution has historically been recognized as a civil remedy. Bash further notes that while all monetary penalties can deter, MVRA restitution does not advance criminal punishment’s goals “more than any civil monetary remedy.” Most critically, Bash argues that the MVRA’s nonpunitive rationale, compensating victims, is its primary purpose. Thus, despite Ellingburg’s assertions about the role victims play in MVRA cases and the lack of collectible balances, Bash states that MVRA restitution has a clearly nonpunitive rationale. Additionally, Bash highlights that MVRA restitution is not excessive, as its purpose is to compensate victims and courts cannot order restitution beyond actual losses.

    Discussion

    FAIRNESS OF EXTENDED RESTITUTION 

    Professor Wayne Logan, in support of Ellingburg, argues that retroactively extending restitution obligations prevents defendants from understanding the full scope of their punishment at the time of their crimes. Logan argues that this undermines the criminal justice system’s fairness and predictability. Cato Institute et al. (“Cato Institute”), in support of Ellingburg, further explain that defendants sentenced under the VWPA rely on its twenty-years-from-sentencing cutoff, so retroactively extending the restitution obligation period undermines the values of fair notice and reliance.  The National Association of Criminal Defense Lawyers (“NACDL”) and Families Against Mandatory Minimums (“FAMM”) argue that retroactively lengthening the enforcement window allows the government to enforce the MVRA restitution order by seizing the defendant’s property, including retirement accounts and physical property, for longer than the twenty year limit. NACDL and FAMM maintain that these seizures of property can destabilize defendants financially, even beyond the duration of their sentence.

    John F. Bash, in support of the judgement below, argues that MVRA is not unfair to defendants. Bash explains that Congress cannot increase the monetary liability of defendants beyond the monetary value of the victim’s loss. Additionally, the United States argues that courts are currently allowed to set payment schedules that only require “nominal payments” and waive accrued interest if the defendant’s financial circumstances do not allow for full restitution payment. , Beyond the rights of defendants, Debra Ricketts-Holder, in support of the judgement below, argues that victims have a right to restitution protected by statutes like MVRA. 

    PROVIDING COMPENSATION TO VICTIMS

    Restitution Scholars, in support of Ellingburg, argue that restitution obligations rarely improve victims’ financial recovery for failing to create any appreciable increase in compensation, while imposing significant hardships on defendants. NACDL and FAMM further note that most defendants lack the means to repay their restitution debts in full, which means that extended enforcement rarely functions as a realistic mechanism for compensation. NACDL and FAMM also report that around 91% of federal restitution balances are uncollectible, so most victims already receive little compensation. Further, the Constitutional Accountability Center (CAC) explains that alternatively, the government could directly pay victims instead of spending copious amounts of money enforcing restitution.

    The United States argues that invalidating the MVRA’s extended period will undermine Congress’s goal of providing restitution to victims. The United States contends that in criminal cases, it is the government’s responsibility to collect unpaid restitution for victims. To that end, the United States argues that extending the restitution enforcement window keeps defendants bound to their obligations until they are able to pay, rather than easily allowing their responsibility to lapse and leave victims uncompensated. John F. Bash maintains that MVRA is meant to provide victims compensation in the form of restitution. Bash argues that victims of crime will not want to take on the burden of suing for compensation in civil court. Bash argues then that MVRA is an easier and more efficient way for victims to receive compensation.  

    Conclusion

    Authors

    Written by:    Raj Walia and Jeff Feng

    Edited by:      Domnick Q. Raimondo
                         Johanna Hussain
    Alexandra “Lexie” Kapilian

     

    Additional Resources