by David Kim

The Supreme Court of the United States unanimously held that restitution imposed under the Mandatory Victims Restitution Act of 1996 (“MVRA”) constitutes criminal punishment for purposes of the Ex Post Facto Clause. The Court reversed the Eighth Circuit’s contrary conclusion, reasoning that the statutory text and structure of the MVRA make “abundantly clear” that Congress intended restitution to function as a criminal sanction. Examining multiple features of the statute, including its designation of restitution as a “penalty,” its placement within the criminal code, its imposition at sentencing alongside imprisonment and fines, and the Government’s role as the adverse party, the Court determined that the threshold inquiry required for an Ex Post Facto Clause challenge was satisfied.

Background

Congress enacted the MVRA on April 24, 1996, requiring defendants convicted of certain federal crimes to pay monetary restitution to victims. Petitioner Holsey Ellingburg, Jr. committed his offense before that date but was sentenced later in 1996 under the newly enacted statute. The sentencing court ordered him to pay $7,567.25 in restitution, an obligation he has not yet satisfied.

Ellingburg challenged his continued restitution obligation under the Ex Post Facto Clause, arguing that applying the MVRA to conduct predating its enactment violates constitutional protections against retroactive criminal laws. The U.S. Court of Appeals for the Eighth Circuit, applying circuit precedent, concluded that MVRA restitution does not constitute criminal punishment and therefore rejected the challenge.

Before the Supreme Court, both Ellingburg and the Government agreed that the Eighth Circuit had erred. The Court appointed John F. Bash as amicus curiae to defend the judgment below.

Analysis

The Court began by explaining that the Ex Post Facto Clause inquiry depends on whether a challenged law imposes criminal punishment or merely a civil remedy. It observed that assessing “whether a statutory scheme is civil or criminal is first of all a question of statutory construction” requiring courts to “consider the statute’s text and its structure.” Smith v. Doe, 538 U.S. 84 (2003).

The Court stated that when statutory text and structure do not demonstrate congressional intent to impose criminal punishment, a law may nonetheless be deemed criminal if the challenger provides “the clearest proof” that the statutory scheme is “so punitive either in purpose or effect as to negate [the Government’s] intention to deem it civil.” Kansas v. Hendricks, 521 U.S. 346 (1997). However, the Court determined that this secondary inquiry was unnecessary because the MVRA’s text and structure conclusively established it was intended as criminal punishment.

Statutory Features Demonstrating Criminal Punishment

The Court identified numerous textual and structural features supporting its conclusion that MVRA restitution is criminal punishment. First, the statute expressly designates restitution as a “penalty” for a criminal “offense.” 18 U.S.C. § 3663A(a)(1). Second, restitution may be ordered only against a “defendant” following conviction of a qualifying crime. Third, restitution is imposed during “sentencing” for the underlying offense, at a proceeding where the Government, rather than the victim, stands as the adverse party.

Additionally, the Court noted that sentencing courts impose restitution alongside traditional criminal punishments such as imprisonment and fines. Significantly, for misdemeanor offenses, restitution may serve as the sole punishment, available “in lieu of” other sanctions. Furthermore, when a defendant fails to make required payments, the court may modify supervised release or probation terms and impose imprisonment upon determining that “alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence.” 18 U.S.C. §§ 3614(b)(2), 3613A(a)(1).

The Court explained that the statutory architecture reinforces this conclusion. It observed that the federal MVRA restitution regime appears in Title 18, “Crimes and Criminal Procedure.” The primary provisions authorizing restitution orders, §§ 3663 and 3663A, are located in Chapter 232, entitled “Miscellaneous Sentencing Provisions.” Additionally, § 3556, which mandates restitution for covered offenses, appears in Chapter 227, titled “Sentences.” The statute itself references a “sentence that imposes an order of restitution.” § 3664(o). District Courts imposing restitution must follow procedures applicable to other criminal penalties, including the Federal Rules of Criminal Procedure. Finally, § 3663(c) directs the U.S. Sentencing Commission to promulgate criminal sentencing guidelines for restitution.

The Court concluded that when “viewed as a whole,” these features make “abundantly clear that restitution is criminal punishment.” The Court clarified it was not holding that all such statutory features are necessary to establish criminal punishment, but that they are sufficient.

Prior Precedent Supports
the Conclusion

The Court stated that its prior decisions had consistently characterized MVRA restitution as criminal punishment. In Manrique v. United States, 581 U.S. 116 (2017), the Supreme Court stated that the MVRA requires courts “to impose restitution as part of the sentence.” In Pasquantino v. United States, 544 U.S. 349 (2005), the Supreme Court explained that MVRA restitution is designed “to mete out appropriate criminal punishment.” Paroline v. United States, 572 U.S. 434 (2014), repeated that characterization.

Related precedent further supported the Court’s analysis. In United States v. Bajakajian, 524 U.S. 321 (1998), the Supreme Court held that forfeiture under 18 U.S.C. § 982(a)(1) – which, like MVRA restitution, occurs at the conclusion of criminal proceedings and requires conviction – constitutes criminal punishment. In contrast, in United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the Supreme Court determined that forfeiture ordered during an in rem proceeding is a civil sanction, illustrating the distinction between proceedings predicated on criminal convictions and those that are not.

Response to Amicus Arguments

The amicus argued that Smith controlled this case, but the Court disagreed. In Smith, the Supreme Court considered a law requiring convicted defendants to register as sex offenders and held that the registration mandate was civil because the legislature had adopted “distinctly civil procedures” for imposing registration requirements. The Court distinguished MVRA restitution as fundamentally different: it is labeled a penalty, codified in the criminal code, predicated on criminal conviction, imposed against criminal defendants, sometimes ordered in lieu of other punishments, ordered at sentencing with the United States as the adverse party, and can result in resentencing when defendants refuse payment.

The Court acknowledged the amicus’ argument that the MVRA seeks to compensate crime victims, a nonpunitive goal. Several statutory provisions reflect this objective, including the requirement that restitution amounts correspond to victim losses. § 3664(f)(1)(A). However, the Court reasoned that these provisions merely demonstrate that Congress intended MVRA restitution to serve dual purposes, i.e., both punishment and compensation. The Court stated that as long as statutory text and structure demonstrate congressional intent “to impose punishment,” that “ends the inquiry.” Smith; Paroline; Pasquantino.

The Court further rejected the significance of victims receiving notice of sentencing proceedings and being consulted by prosecutors. Such outreach and participation in criminal proceedings are not unusual. The dispositive consideration is that victims lack “the power to initiate or settle the restitution process as they would if it were a civil proceeding,” according to the Court.

The Court cautioned that its holding does not mean a restitution statute can never be civil, noting the Government’s observation that not everything occurring at criminal sentencing or appearing in a criminal judgment necessarily constitutes punishment. However, the Court concluded that there was no need to explore that boundary because the statutory text and structure of the MVRA unambiguously demonstrate that restitution under that Act is criminal punishment.

Conclusion

Accordingly, the Court reversed the judgment of the Eighth Circuit and remanded the case for further proceedings consistent with its opinion. See: Ellingburg v. United States, 2026 U.S. LEXIS 504 (2026).  

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