Ellingburg v. United States | Case No. 24-482 | Docket Link: Here

Question Presented: Whether criminal restitution under the Mandatory Victim Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause.

Overview

This episode examines Ellingburg v. United States, one of the most procedurally unusual Supreme Court cases in recent memory. After the Court granted certiorari, the government switched positions following a change in presidential Administration, now agreeing with the criminal defendant that the Eighth Circuit erred. The Court appointed an outside attorney as amicus curiae to defend the lower court's judgment, creating a rare scenario where both named parties argue for the same outcome. At its core, the case asks whether mandatory criminal restitution constitutes punishment subject to the Constitution's Ex Post Facto Clause—a question with profound implications for thousands of federal defendants and the government's authority to retroactively enforce criminal restitution obligations.

Episode Roadmap

Opening: A Procedural Rarity

• Government switches sides after Administration change
• Court appoints amicus curiae to defend Eighth Circuit's judgment
• Unusual three-way legal battle over fundamental constitutional question
• Implications for thousands convicted of federal crimes before 1996

Background: Ellingburg's Story

• 1995: Holsey Ellingburg, Jr. robs bank in St. Louis, Missouri
• 1996: Sentenced to 322 months imprisonment, ordered to pay $7,567 restitution under pre-MVRA law (VWPA)
• Under original law, restitution obligation expired November 2016 (20-year limit)
• 2022: Released from prison, rebuilding life on minimum wage
• 2023: Government demands $13,476 using MVRA's extended collection period and mandatory interest
• Pro se motion challenges retroactive application as Ex Post Facto violation

The Central Legal Question

• Is MVRA restitution criminal punishment or civil remedy?
• If criminal: Ex Post Facto Clause prohibits retroactive application
• If civil: Government can apply new collection rules to old offenses
• Statutory construction as threshold issue: What did Congress intend?

Procedural Journey Through the Courts

• District Court: Denied motion, held MVRA application merely "procedural"
• Eighth Circuit: Affirmed on different ground—restitution is civil remedy, not criminal punishment
• Circuit relied on Carruth precedent despite Pasquantino and Paroline developments
• Two concurring judges questioned binding precedent's continued validity
• Supreme Court grants certiorari to resolve circuit split

Constitutional Framework: The Ex Post Facto Clause

• Article I, Section 9, Clause 3: "No ex post facto Law shall be passed"
• Prohibits retroactively increasing punishment for criminal acts
• Only applies to criminal laws, not civil remedies
• Constitutional protection against arbitrary government power

The Statutory Text Battle

• Section 3663A: Restitution ordered "when sentencing a defendant convicted of an offense"
• "In addition to, or in lieu of, any other penalty authorized by law"
• Codification in Title 18 criminal code, Chapter 227 "Sentences"
• Criminal procedures govern: presentence reports, probation officers, appellate review
• Enforcement through threat of imprisonment for nonpayment

Petitioner's Three Main Arguments

Argument 1: Text and Structure Prove Criminal Intent

• Statutory language integrates restitution into criminal sentencing
• Grouped with fines and imprisonment as penalties
• Criminal procedures from start to finish
• Codified in "Sentences" chapter alongside other criminal punishments
• Section 3556 requires courts imposing sentences to order restitution

• Backed by threat of imprisonment—"paradigmatic affirmative disability"
• Nonpayment can result in revocation of probation/supervised release
• Resentencing possible without new indictment, prosecution, or conviction
• Section 3614(b)(2) explicitly references "purposes of punishment and deterrence"
• Congress included "to the extent constitutionally permissible" language showing Ex Post Facto concerns

• Pasquantino: Purpose is "to mete out appropriate criminal punishment"
• Paroline: Restitution "serves punitive purposes" and has "penological purposes"
• Kelly v. Robinson: State restitution is "criminal sanction" and "penal sanction"
• Courts of appeals uniformly treated VWPA restitution as criminal for Seventh Amendment purposes
• Government's own historical position: Solicitor General directed non-retroactive application in 1998

Government's Arguments (Supporting Petitioner/Vacatur)

Argument 1: Statutory Construction Demonstrates Criminal Nature

• Question is "principally a question of statutory construction" (Kansas v. Hendricks)
• Text and structure integrate restitution into defendant's criminal sentence
• Codification in "Sentencing" provisions alongside imprisonment and fines
• Procedural mechanisms mirror other criminal penalties
• Probation officers, presentence reports, criminal appellate review

• Pre-MVRA courts uniformly held VWPA restitution was criminal penalty
• Kelly: Criminal restitution has "deterrent effect" and serves "effective rehabilitation penalty"
• Pasquantino: Would be "passing strange" to apply only tort law model to criminal restitution
• Paroline: Restitution "imposed by the Government at the culmination of a criminal proceeding"
• Majority of circuits recognize Ex Post Facto Clause applies to MVRA restitution

• Eighth Circuit erred by ignoring statutory text and structure
• But alternative ground available: extending collection period may not increase punishment
• Original debt amount ($7,567.25) unchanged by MVRA amendments
• "Time horizon" for collection arguably not separate punishment
• Requests vacatur and remand for court of appeals to consider alternative ground

Court-Appointed Amicus's Arguments (Defending Eighth Circuit)

Argument 1: No "Conclusive Evidence" of Punitive Intent

• Mendoza-Martinez requires "unmistakable penal intent" and "overwhelming indications"
• Clear statement requirement grounded in separation of powers
• Congress didn't use "criminal restitution" label
• Mandatory structure eliminates judicial discretion typical of criminal sentencing
• Courts cannot consider defendant's culpability, economic circumstances, or penological goals
• Payment goes to victims, not government as prosecuting sovereign
• Victims can enforce like civil creditors with liens and collection procedures

• Traditional civil restitution focuses on victim's losses, not defendant's gain
• No "affirmative disability or restraint" from restitution itself
• Consequences of nonpayment don't make underlying obligation punitive
• Criminal conviction required to serve nonpunitive purpose (victim compensation)
• Doesn't implicate traditional punishment aims—courts barred from considering deterrence/retribution
• Award capped at victim's loss, offset by civil judgments
• Substantial nonpunitive purpose (compensation) without excess

• Question asks about "restitution under the MVRA"
• But Ellingburg's restitution imposed under pre-MVRA VWPA
• Only MVRA's collection period and interest provisions applied retroactively
• Answering MVRA question would be advisory opinion
• Ex Post Facto analysis requires examining VWPA restitution's nature, not MVRA's
• Parties failed to disclose this threshold issue in briefing

The Legal Frameworks Explained

Kansas v. Hendricks / Smith v. Doe Framework

• Whether penalty is criminal "is principally a question of statutory construction"
• Courts must ascertain whether legislature meant to establish criminal or civil proceedings
• If legislature intended punishment, inquiry ends and Ex Post Facto Clause applies
• Focus on legislative intent through statute's text and structure

• Step One: Is there "conclusive evidence" of congressional punitive intent?
• If not conclusive, Step Two: Seven-factor analysis of whether "so punitive" as to be criminal

Broader Implications

If Petitioner/Government Prevail:

• Thousands of pre-1996 defendants may have expired restitution obligations
• MVRA restitution subject to other criminal constitutional protections
• Potential Excessive Fines Clause applications
• Limits on retroactive enforcement of criminal restitution
• Confirmation of decades of circuit court precedent

• Government can continue enforcing MVRA provisions retroactively
• Restitution treated differently from other criminal penalties
• Broader state authority to craft victim compensation schemes
• Different constitutional protections apply to civil versus criminal restitution

Cultural and Legal Tensions

• Victim compensation versus defendant rights
• Retroactivity and fairness in criminal law
• Separation of powers: Congress's authority to define punishment
• Government position changes with Administration changes
• Practical impact on criminal defendants' ability to rebuild lives post-incarceration

Key Dates and Next Steps

• Briefs completed June 2025
• Oral arguments to be scheduled
• Decision expected by June 2026
• Potential remand to Eighth Circuit on alternative grounds

Referenced Cases

Kansas v. Hendricks | 521 U.S. 346 (1997)

• Question Presented: Whether Kansas's Sexually Violent Predator Act, which provides for civil commitment of persons likely to engage in predatory acts of sexual violence, violates substantive due process, the Double Jeopardy Clause, or the Ex Post Facto Clause
• Arguments: Established that determining whether law is civil or criminal "is principally a question of statutory construction"; courts must ascertain whether legislature meant to establish civil or criminal proceedings; if legislature intended punishment, that ends the inquiry for Ex Post Facto purposes.

• Question Presented: Whether Alaska's Sex Offender Registration Act violates the Ex Post Facto Clause
• Arguments: Applied two-step Hendricks/Mendoza-Martinez framework; if legislative intent was to impose punishment, inquiry ends; if intent was civil and nonpunitive, party challenging must show "clearest proof" that scheme is "so punitive either in purpose or effect" as to negate legislature's intention; courts accord "considerable deference" to legislative intent as stated.

• Question Presented: Whether statute divesting citizenship of persons who leave or remain outside United States to evade military service constitutes punishment
• Arguments: Established seven-factor test for determining whether sanction is criminal punishment: (1) affirmative disability or restraint; (2) historically regarded as punishment; (3) requires scienter; (4) promotes traditional aims of punishment; (5) behavior already a crime; (6) alternative nonpunitive purpose; (7) excessive relative to alternative purpose. Requires "conclusive evidence" of punitive intent.

• Question Presented: Whether federal wire fraud statute applies to scheme to defraud foreign government of tax revenue
• Arguments: Court stated "[t]he purpose of awarding restitution" under MVRA is "to mete out appropriate criminal punishment"; noted restitution "imposed by the Government at the end of a criminal proceeding against a defendant convicted of a criminal offense"; emphasized restitution serves purposes that "differ from (though they overlap with) the purposes of tort law."

• Question Presented: How to determine restitution amount under 18 U.S.C. § 2259 for child pornography victims when defendant is one of thousands who possessed victim's images
• Arguments: Court recognized that while restitution's "primary goal" is "remedial or compensatory," "it also serves punitive purposes"; described restitution's "penological purposes"; noted restitution "is imposed by the Government at the culmination of a criminal proceeding and requires conviction of an underlying crime"; emphasized it serves to hold offenders "accountable for the harm [they] caused."

• Question Presented: Whether restitution obligation imposed as condition of state criminal probation is dischargeable in bankruptcy as debt "for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit"
• Arguments: Court held state criminal restitution is "criminal sanction" and "penal sanction" serving "the State's interests in rehabilitation and punishment"; noted restitution has "deterrent effect" and is "an effective rehabilitation penalty" that forces "the defendant to confront, in concrete terms, the harm his actions have caused"; emphasized that despite benefit to victims, restitution remains fundamentally penal.

• Question Presented: Whether California statute reducing frequency of parole reconsideration hearings for certain inmates violates Ex Post Facto Clause
• Arguments: Court stated Ex Post Facto Clause "is aimed at laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts'"; establishes foundational principle that Clause only applies to criminal laws that disadvantage defendants by increasing punishment.

• Question Presented: Whether forfeiture of $357,144 for failure to report currency transportation violates Excessive Fines Clause
• Arguments: Court analyzed whether forfeiture constitutes "punishment" for Eighth Amendment purposes; established that forfeitures can be civil in nature but still constitute punishment for constitutional purposes if they serve in part to punish.

• Question Presented: Early interpretation of Ex Post Facto Clause's scope and limitations
• Arguments: Landmark early Supreme Court decision establishing that Ex Post Facto Clause applies only to criminal laws, not civil legislation; defined four categories of ex post facto laws including those that aggravate crimes or increase punishment for acts already committed.

• Question Presented: Whether Victim and Witness Protection Act authorizes restitution for losses from uncharged conduct related to convicted offense
• Arguments: Court interpreted VWPA to limit restitution to losses caused by specific conduct underlying offense of conviction; established narrow interpretation of restitution statutes; government argued restitution under VWPA was "criminal rather than civil sanction" based on "language, structure, and legislative history."

• Question Presented: Whether 90-day deadline in 18 U.S.C. § 3664(d)(5) for determining restitution amount is mandatory and jurisdictional
• Arguments: Court held deadline is mandatory claim-processing rule, not jurisdictional; emphasized compensatory purpose of MVRA in making crime victims whole; noted restitution integrated into federal criminal sentencing system.

Key Legal Concepts Explained

• Ex Post Facto Clause: Constitutional prohibition on retroactively increasing punishment for crimes
• Criminal vs. Civil Punishment: Fundamental distinction determining which constitutional protections apply
• Statutory Construction: Method of interpreting what Congress intended when enacting law
• Mendoza-Martinez Factors: Seven-factor test for determining if sanction is criminal punishment
• Clear Statement Rule: Requirement that Congress clearly indicate intent when testing constitutional limits
• Lesser-Included Offense: Crime necessarily committed when committing greater offense
• Confession of Error: Rare instance when government admits lower court ruling was wrong
• Amicus Curiae: "Friend of the court" appointed to argue position when parties agree
• Mandatory vs. Discretionary Sentencing: Distinction between required penalties and judicial discretion
• Penal vs. Remedial Purpose: Whether law aims to punish wrongdoers or compensate victims