The government and the convicted bank robber in the case, Holsey Ellingburg Jr. of Georgia, had both asserted during oral arguments in October that Congress intended for mandatory restitution ordered under the Mandatory Victims Restitution Act to be part of a criminal defendant’s punishment when the law was enacted in 1996.
But the government disagreed with Ellingburg’s argument that extending the liability period for restitution, with compounding interest, was a violation of the Constitution’s ex post facto clause, which prohibits the government from increasing a defendant’s punishment for crimes after they were committed.
The government sought to preserve that argument for additional proceedings in the lower court, after the justices decided whether restitution ordered under the MVRA was punitive for purposes of the Constitution’s ex post facto clause.
The justices found in Tuesday’s opinion that the “statutory analysis is straightforward: Restitution under the MVRA is plainly criminal punishment for purposes of the ex post facto clause.”
“Numerous features of the MVRA lead to that conclusion. The MVRA labels restitution as a ‘penalty’ for a criminal ‘offense,’ 18 U. S. C. §3663A(a)(1),” Justice Brett Kavanaugh wrote for the court. “A court may order restitution only with respect to a criminal ‘defendant’ and only after that defendant’s conviction of a qualifying crime. Restitution is imposed during ‘sentencing’ for the offense. At the sentencing proceeding where restitution is ordered, the government, not the victim, is the party adverse to the defendant.”
Justice Kavanaugh later noted in the opinion, “Our ruling today does not mean that a restitution statute can never be civil. But the statutory text and structure of the MVRA demonstrate that restitution under that act is criminal punishment.”
An attorney for Ellingburg, Amy Mason Saharia of Williams & Connolly LLP, declined to comment when reached Tuesday. The government did not immediately respond to a request for comment.
A federal jury convicted Ellingburg in 1996 of robbing a bank in Savannah, Georgia, and using a gun during a violent crime. He was sentenced to more than 26 years in prison and ordered to pay $7,567 in mandatory restitution, with interest, for 20 years after his release from prison under the MVRA’s extended liability period.
He has paid $2,000 in restitution, but owes more than $13,400 as a result of compounding interest, according to court filings.
The Third, Fifth, Sixth, Ninth and Eleventh circuits have ruled that mandatory restitution ordered under the MVRA is a type of criminal punishment, while the Seventh, Eighth and Tenth circuits have taken the opposite stance.
The Eighth Circuit rejected Ellingburg’s argument on appeal based on its position that criminal restitution is a civil remedy, without ruling on the constitutional question of whether extending the restitution payment period increases a defendant’s punishment.
The Supreme Court reversed the Eighth Circuit’s ruling and remanded the case for further proceedings consistent with its Tuesday opinion.
“On remand, the court of appeals may consider the government’s separate arguments for affirmance of the district court’s judgment,” the justices held.
Justice Clarence Thomas wrote separately, with Justice Neil Gorsuch joining, to “clarify the foundation” of the precedent underpinning the court’s decision.
Justice Thomas asserted that “this court’s precedents concerning the scope of laws imposing criminal punishment have departed from Calder’s understanding of that category,” citing the high court’s 1798 opinion in Calder v. Bull.
That decision “established that the ex post facto clauses forbid only those retroactive laws that impose ‘punishment’ for a ‘crime,'” Justice Thomas wrote. “Over the 228 years since Calder, the court has struggled to articulate what it means for a law to impose punishment for a crime, and thus to be subject to the ex post facto clauses.”
He concluded, “In a future case, the court should consider returning to Calder’s understanding.”
The government is represented by Ashley Robertson and Curtis E. Gannon of the U.S. Solicitor General’s Office and Antoinette T. Bacon and John-Alex Romano of the U.S. Department of Justice‘s Criminal Division.
Ellingburg is represented by Amy Mason Saharia, Lisa Schiavo Blatt, Atticus W. DeProspo and Brett V. Ries of Williams & Connolly LLP.
The case is Ellingburg v. U.S., case number 24-482, in the Supreme Court of the United States.
–Editing by Daniel King.
