Ellingburg v. U.S.: Restitution under Mandatory Victims Restitution Act is criminal punishment for purposes of Ex Post Facto Clause
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
Restitution under the Mandatory Victims Restitution Act (MVRA) is criminal punishment for purposes of the Ex Post Facto Clause, the U.S. Supreme Court held January 20 in Ellingburg v. United States.
Facts
Holsey Ellingburg was convicted and sentenced in 1996, and ordered to pay about $7,500 in restitution, which he has not yet paid.
He claimed the Ex Post Facto Clause prohibited collecting restitution from him under MVRA because he committed his offense before MVRA was enacted.
The 8th Circuit concluded that restitution under MVRA was not criminal punishment, so did not violate the Ex Post Facto Clause.
Holding
The Supreme Court, in a unanimous opinion, reversed.
“When determining whether a law violates the Ex Post Facto Clause, the Court must evaluate whether the law imposes a criminal or penal sanction as opposed to a civil remedy”, the Court said.
“Assessing whether a ‘statutory scheme is civil or criminal is first of all a question of statutory construction’ that requires the Court to ‘consider the statute’s text and its structure’”, the Court said.
“Numerous features” of MVRA lead to the conclusion that the statute is “plainly criminal punishment for purposes of the Ex Post Facto Clause”, the Court said.
MVRA labels restitution as a “penalty” for an “offense”, the Court said. The statute refers to a “defendant” and allows restitution only after conviction for a qualifying offense.
Restitution is imposed during “sentencing” for the offense, together with other criminal punishments such as imprisonment and fines, the Court said.
MVRA is contained in the Title 18 of federal statutes titled “Crimes and Criminal Procedures”, the Court said.
“When viewed as a whole, then, the MVRA makes abundantly clear that restitution is criminal punishment”, the Court said.
Still, the Court left open the possibility that some restitution statutes could be considered civil.
“Our ruling today does not mean that a restitution statute can never be civil”, the Court said. “But the statutory text and structure of the MVRA demonstrate that restitution under the Act is criminal punishment.”
Concurring Opinion
Justice Thomas concurred, but wrote separately to state his view that the Court’s “recent” precedents have turned “largely on whether the legislature labels the law as criminal or civil”, which is not how the Court would have interpreted “punishment” for a crime at the time the Ex Post Facto Clause was adopted.
“Many laws that are nominally civil today” would have been subject to the Ex Post Facto Clause as “punishment” at that time, Thomas said.
Thomas urged the Court to return to the original understanding of “punishment” in a future case.