MVRA Restitution is Criminal Punishment: Unanimous Supreme Court in Ellingburg v. United States
Does the Ex Post Facto Clause Apply to Restitution? Ellingburg v. United States Explained
SUPREME COURT OF THE UNITED STATES
No. 24–482
HOLSEY ELLINGBURG, JR., PETITIONER
v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[January 20, 2026]
The Supreme Court’s discussion in Ellingburg v. United States centers on whether restitution imposed under the Mandatory Victims Restitution Act of 1996 (MVRA) constitutes criminal punishment for purposes of the Ex Post Facto Clause. In Ellingburg, the petitioner committed his offense before the MVRA became law but was sentenced afterward and ordered to pay restitution totaling $7,567.25. He later challenged the continuing enforceability of that obligation, asserting that because his conduct predated the MVRA, imposing restitution under it violated the Ex Post Facto Clause. The Eighth Circuit rejected his argument, adhering to its precedent that MVRA restitution is not criminal punishment and therefore cannot trigger Ex Post Facto concerns. Before the Supreme Court, however, both Ellingburg and the Government agreed that the Eighth Circuit’s analysis was mistaken. The Court appointed amicus to defend the judgment below, but ultimately reversed.
The Court explains that the Ex Post Facto inquiry begins with determining whether the challenged statute imposes a criminal or civil consequence. Citing Smith v. Doe, 538 U.S. 84, the Court reiterates that this determination is fundamentally a question of statutory construction, requiring close attention to the statute’s text and structure. In the case of the MVRA, the Court finds that the statutory architecture unmistakably reveals Congress’s intent to impose a criminal penalty. The MVRA expressly labels restitution a “penalty” for a criminal “offense” in 18 U.S.C. §3663A(a)(1). It authorizes restitution only against a criminal defendant who has been convicted of a qualifying offense, and the restitution order is imposed as part of sentencing. At that sentencing, the adversarial relationship is between the Government and the defendant, further demonstrating the punitive character of the remedy. Restitution under the MVRA is imposed together with other criminal sanctions, such as incarceration and fines, and for misdemeanors can even be imposed in lieu of imprisonment or fines. Failure to pay restitution can expose a defendant to additional criminal consequences, including modification of probation or supervised release and, in certain circumstances, imprisonment under 18 U.S.C. §§3613A and 3614.
The Court further notes that the restitution statutes are codified within Title 18—“Crimes and Criminal Procedure”—and the provisions governing restitution, including §§3663, 3663A, and 3556, appear in chapters dedicated to sentencing. The statutory framework requires district courts to apply the Federal Rules of Criminal Procedure when ordering and implementing restitution (§3664(c)), and directs the United States Sentencing Commission to promulgate sentencing guidelines governing restitution (§3663(c)). These textual and structural signals, considered collectively, leave no doubt in the Court’s view that restitution under the MVRA is criminal punishment for constitutional purposes.
The Court’s precedent reinforces this interpretation. In Manrique v. United States, 581 U.S. 116, the Court described the MVRA as requiring restitution “as part of the sentence.” Pasquantino v. United States, 544 U.S. 349, similarly recognized restitution as a mechanism for administering “appropriate criminal punishment.” Paroline v. United States, 572 U.S. 434, echoed this characterization. Additionally, the Court analogizes MVRA restitution to criminal forfeiture under 18 U.S.C. §982(a)(1), which in United States v. Bajakajian, 524 U.S. 321, was held to constitute criminal punishment because it occurs at the culmination of a criminal proceeding and follows a conviction. In contrast, forfeiture of firearms under 18 U.S.C. §924(d), addressed in United States v. One Assortment of 89 Firearms, 465 U.S. 354, was deemed civil precisely because it occurs in an in rem proceeding independent of a criminal conviction. These comparisons reinforce the conclusion that MVRA restitution, which is imposed only after conviction and as a direct component of sentencing, is punitive.
Amicus relied heavily on Smith v. Doe, in which the Court held that Alaska’s sex-offender registration law was civil. The Court distinguishes Smith on the ground that the Alaska law used distinctly civil procedures, whereas the MVRA embeds restitution entirely within criminal sentencing procedures, labels it a penalty, and triggers additional criminal consequences for nonpayment. The Court concedes that restitution under the MVRA does serve compensatory purposes—reflected in provisions requiring restitution to be measured by the victim’s actual loss—and acknowledges that victims receive notice and may be consulted by prosecutors. But the Court emphasizes that dual purposes do not render a statute civil; so long as Congress intended to impose punishment, the inquiry ends. Crucially, victims cannot initiate or settle restitution determinations, underscoring that restitution remains a state-driven punitive mechanism rather than a private civil remedy.
For these reasons, the Court holds that MVRA restitution constitutes criminal punishment and therefore that applying the MVRA to conduct predating its enactment implicates the Ex Post Facto Clause. The Court reverses the judgment of the Eighth Circuit and remands for further proceedings, specifying that on remand the Court of Appeals may consider the Government’s alternative grounds for affirmance. Justice Thomas, joined by Justice Gorsuch, concurs, agreeing with the Court’s application of precedent but urging a return to the broader original understanding of the Ex Post Facto Clauses articulated in Calder v. Bull.
