Case Explained:This article breaks down the legal background, charges, and implications of Case Explained: Supreme Court Clarifies Ex Post Facto Status of MVRA Restitution: Ellingburg v. United States | Husch Blackwell LLP – Legal Perspective
The Supreme Court recently and unanimously held in Ellingburg v. United States[1] that restitution imposed under the Mandatory Victims Restitution Act of 1996 (MVRA) qualifies as “criminal punishment” subject to the Constitution’s Ex Post Facto Clause. While this narrow ruling only prohibits restitution judgments for convictions that predate the MVRA, Justice Clarence Thomas authored a concurrence advocating for a more expansive view of the Ex Post Facto Clause that reaches nominally civil as well as criminal laws.
Background
The Supreme Court has long held that the Constitution’s Ex Post Facto Clause[2] only prohibits laws that retroactively impose or increase criminal punishment. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). This means Congress and state legislatures can create or extend penalties for conduct so long as those retroactive penalties are civil in nature. To succeed on an Ex Post Facto challenge, a petitioner must prove both that their offending conduct predated the law under which they were sanctioned and that the sanction amounts to “criminal punishment.”
Focusing on the factual chronology in the Ellingburg decision, the defendant, Holsey Ellingburg, Jr., robbed a bank in December 1995. He was convicted in August 1996, sentenced to prison time, and ordered to pay $7,567.25 in restitution pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3613(b)(1). Under the VWPA, Ellingburg’s restitution order should have expired 20 years after his sentencing. However, in April 1996, after Ellingburg’s crime took place, Congress passed the MVRA, which extended the restitution liability term. The government claimed that it could still collect payments from Ellingburg nearly 30 years after his trial under this new law.
Ellingburg argued that applying the MVRA to his sentence violated the Ex Post Facto Clause because the restitution order amounted to criminal punishment. The U.S. Court of Appeals for the Eighth Circuit disagreed, holding that MVRA restitution was a civil penalty under circuit precedent and therefore not subject to ex post facto restrictions.
Supreme Court reversed lower court decisions that found MVRA to be civil in nature
Justice Brett Kavanaugh, writing for a unanimous Court, explained that restitution under the MVRA is “plainly criminal punishment” for purposes of the Ex Post Facto Clause. The Court’s reasoning focused on the specific features of the MVRA:
- The MVRA expressly labels restitution as a “penalty” for a criminal “offense.”
- The MVRA requires that restitution be imposed only after a criminal conviction and set at sentencing, alongside other criminal sanctions.
- In restitution proceedings under the MVRA, the government, not the victim, is the adverse party litigating against the defendant.
- The MVRA’s restitution provisions are codified in the federal criminal code, Title 18, underscoring their criminal nature.
By the time Ellingburg reached the Supreme Court, the government agreed with the petitioner that MVRA restitution was criminal punishment. As a result, a Court-appointed attorney defended the Eighth Circuit’s judgment. The Court made clear that its holding was limited to MVRA restitution in the ex post facto context. The Court did not decide that all restitution is criminal punishment, nor did it limit the availability of MVRA restitution for offenses committed after April 1996.
Concurrence suggests Ex Post Facto Clause should have broader application
Justice Thomas, joined by Justice Neil Gorsuch, wrote a separate concurrence arguing that the Ex Post Facto Clause should apply to any law addressing a “public wrong.” Relying on common law definitions of “criminal” and “civil” wrongdoing, Justice Thomas suggested that the key inquiry should be whether a law is enforced by the sovereign versus a private party, rather than how it is labeled by a legislature.
While Justice Thomas’s view remains the minority one, his test has the potential to greatly expand the reach of the Ex Post Facto Clause. Currently, both Congress and state legislatures have numerous civil, administrative, and municipal laws that punish retroactive conduct. Justice Thomas’s concurrence offers several arguments as to why these laws should be open to Ex Post Facto challenges. For example, Justice Thomas suggested that civil regulatory fines, such as steep environmental penalties, should not be shielded from constitutional scrutiny simply because they are labeled “civil,” since they function as punishment for public wrongs. Similarly, he pointed to enforcement actions by administrative agencies, which often impose significant penalties on behalf of the government for past conduct, as a context where the Ex Post Facto Clause should apply regardless of legislative labels.
Finally, Justice Thomas highlighted municipal sanctions like traffic fines, noting that if a city were to retroactively increase a penalty for a minor offense, it would be “nonsensical” to treat the resulting punishment as non-punitive just because the process is civil rather than criminal. In each of these scenarios, the substance, not the label, of the government’s action is what matters under Justice Thomas’ approach.
Key Takeaways
The practical impact of Ellingburg is confined to restitution orders for conduct that occurred before April 1996 conduct. However, the opinion indicates that at least some justices are open to hearing future Ex Post Facto Clause challenges in broader contexts and might be amenable to arguments under other circumstances that suggest the Clause should be applied outside of criminal settings.
[1] 607 U.S. __, 2026 WL 135982 (Jan. 20, 2026).
[2] The Constitution has two ex post facto clauses applying to state and federal laws, respectively. U.S. Const. art. I, § 9, cl. 3; § 10, cl. 1. The Court has held that the two clauses have the same scope. E.g., Peugh v. United States, 569 U.S. 530, 532-33 (2013).
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