Supreme Court: Criminal restitution is punishment under Ex Post Facto Clause

On Jan. 20, 2026, the Supreme Court ruled unanimously in Ellingburg v. United States that restitution under the Mandatory Victims Restitution Act (MVRA) is criminal punishment for Ex Post Facto Clause purposes. Justice Kavanaugh wrote the opinion. This limits retroactive application of restitution laws. Congress can't extend criminal penalties after someone committed their crime.

Holsey Ellingburg robbed a bank in 1995 and was ordered to pay $7,567.25 in restitution when sentenced in 1996. By his release in 2022, interest doubled the amount to $13,476.01. Under the prior law (Victim and Witness Protection Act), restitution expired after 20 years. But the MVRA, enacted after his crime, extends liability indefinitely. The question was whether this retroactive extension violates the Ex Post Facto Clause.

The Ex Post Facto Clause prohibits retroactive criminal punishment. The threshold question was whether MVRA restitution is 'criminal punishment' or a 'civil remedy.' The Eighth Circuit held it's civil, so retroactive application is fine. The Supreme Court reversed, holding restitution under MVRA is plainly criminal punishment. Congress can't apply it retroactively to increase penalties for crimes committed before the law passed.

In an unusual move, the Trump administration switched sides after granting cert. Solicitor General D. John Sauer joined Ellingburg's attorney in arguing restitution is punitive. The Court appointed JFJohn F. Bash as amicus to defend the Eighth Circuit's ruling that restitution isn't criminal punishment. The government's flip forced the Court to find someone to argue the other side.

The Court examined MVRA's text and structure. Restitution is imposed 'as part of the criminal sentence,' only criminal defendants can be ordered to pay it, it's imposed in criminal proceedings, and the government (not the victim) is the adverse party. These factors demonstrate restitution is criminal punishment, not a civil remedy between private parties. The law's placement in the criminal code and procedural requirements all point to punishment.

Justice Thomas and Gorsuch concurred, clarifying that the Ex Post Facto Clause forbids retroactive laws that impose 'punishment' for a 'crime.' Thomas traced the doctrine to Calder v. Bull (1798) and argued courts should focus on whether a law punishes a public wrong (injury to the sovereign) versus changing private relations like contract or property law. Restitution in criminal cases punishes public wrongs.

The ruling affects only a small number of federal inmates sentenced before 1996. As of Mar. 2025, nearly 90% of federal inmates were sentenced within the past 10 years. But the decision establishes important Ex Post Facto Clause precedent limiting Congress's ability to retroactively increase criminal penalties. It protects defendants from surprise punishment increases after they've committed crimes.