Supreme Court Hold Ex Post Facto Clause Applies to Criminal Restitution Statute

In Ellingburg v. United States, 607 U.S. ____ (2026), the U.S. Supreme Court unanimously heldthat the Constitution’s Ex Post Facto Clause applies to sanctions imposed in federal criminal proceedings under the Mandatory Victims Restitution Act (MVRA). The Court’s decision was unanimous.

Facts of the Case

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of certain federal crimes to pay monetary restitution to victims. The MVRA became law on April 24, 1996.

In this case, Petitioner Holsey Ellingburg committed his crime before the enactment of the MVRA. However, he was sentenced later in 1996 after the Act took effect and ordered to pay restitution in the amount of $7,567.25.Ellingburg raised an Ex Post Facto Clause challenge to his continued restitution obligation.The clause bars the imposition of criminal penalties based on statutes that didn’t exist when the crime occurred.

The U.S. Court of Appeals for the Eighth Circuit concluded that restitution under the MVRA is not criminal punishment. According to the appeals court, restitution under the MVRA was “designed to make victims whole, not to punish perpetrators” and therefore was “essentially a civil remedy created by Congress” and had only been “incorporated into criminal proceedings for reasons of economy and practicality.”

Supreme Court’s Decision

The Supreme Court reversed. “Our ruling today does not mean that a restitution statute can never be civil,” Justice Brett Kavanaugh wrote on behalf of the unanimous Court. “But the statutory text and structure of the MVRA demonstrate that restitution under that Act is criminal punishment.”

In reaching its decision, the Court emphasized that whether a law violates the Ex Post Facto Clause requires evaluating whether the law imposes a criminal or penal sanction as opposed to a civil remedy, which is a question “of statutory construction” that requires the Court to “consider the statute’s text and its structure.”

In determining that restitution is a criminal punishment under the MVRA, the Court cited “numerous features” of the MVRA supporting its conclusion that restitution is “plainly criminal.” As Justice Kavanaugh noted in his opinion, the MVRA labels restitution as a “penalty” for a criminal “offense.” Also, only a criminal defendant convicted of a qualifying crime may be ordered to pay restitution.

Justice Kavanaugh further highlighted that restitution is imposed at sentencing for that offense together with other criminal punishments, such as imprisonment and fines. Additionally, at the sentencing proceeding where restitution is imposed, the Government, not the victim, is the party adverse to the defendant.

The Court also emphasized that the MVRA is codified in Title 18, “Crimes and Criminal Procedure,” and that the statutory provisions authorizing restitution orders are contained in chapters related to sentencing provisions.

While the Court acknowledged that Congress intended restitution under the MVRA to both punish offenders and compensate victims, it noted that victims can’t initiate or settle the restitution process as they would if it were a civil proceeding. “And so long as the text and structure of the Act demonstrate that Congress intended at least to impose punishment, that “ends the inquiry,” Justice Kavanaugh wrote.