Ellingburg v. United States
Digest
Decades after his conviction, a defendant is facing tougher rules for paying back his victim under a law passed after he committed his crime. The Supreme Court must now decide if this is constitutional. The case, Ellingburg v. United States, asks whether mandatory restitution—money a defendant pays a victim—is a criminal punishment. If it is, the Constitution’s Ex Post Facto Clause forbids making it harsher retroactively. The defendant argued that restitution is clearly punishment because it’s part of a criminal sentence and backed by the threat of more jail time. An appointed amicus countered that restitution is a civil-style remedy designed to compensate victims, not punish offenders, noting its mandatory nature is based on victim loss, much like a civil damages award. If the Court deems restitution a punishment, Congress cannot apply tougher collection rules to old crimes. If it’s ruled civil, victims will have a better chance of being paid back, but it could create new constitutional questions about the right to a jury trial.
Key Moments
In response to the argument that restitution is purely about compensation, Justice Kagan bluntly stated, 'compensation can be a form of punishment.'
This statement cuts to the heart of the case and rejects the government's core premise. It shows that key justices see no contradiction between something being compensatory for the victim and punitive for the offender, collapsing the government's entire logical framework.
He proposed an 'alternative hypothesis': Maybe Congress made restitution mandatory not to make it more civil, but because they thought it was a punishment that judges weren't imposing often enough, so they took away their discretion, just like with mandatory minimum prison sentences.
This completely flips the government's narrative. It takes the strongest fact for the government—that restitution became mandatory—and masterfully reframes it as the strongest evidence that it's actually punishment. This provided a powerful new logical path for the petitioner.
She told the amicus lawyer supporting the government that he was 'struggling a little bit against the weight of all of the consensus' that the previous, less strict version of the law was considered criminal punishment.
This reveals that the Court's institutional memory is a major hurdle for the government. Justice Jackson is essentially asking: 'If everyone agreed the weaker old law was punishment, how can you argue this tougher new law isn't?' It places a high burden of proof on the government to justify this change in interpretation.
He asked whether the case should turn on the 'label' Congress uses or the 'operations' of the statute. 'Could it just say, we intend this to be civil... and then we would say it's civil?'
This question reveals a search for a clear rule. Justice Kavanaugh is skeptical of letting Congress define something as 'civil' if it functions as a criminal penalty. It signals he's focused on the practical reality of the law, not just the words Congress used to describe it.
He asked the petitioner's lawyer if restitution is punishment, why can victims 'enforce the restitution order themselves?' He noted this 'cut[s] strongly against' the argument that it's purely penal.
This was the sharpest and most effective challenge to the petitioner's case. It highlights the most 'civil-like' aspect of the law and forces the petitioner to explain why this feature doesn't fundamentally change the nature of restitution from a state-imposed penalty to a private debt.
He posed a hypothetical about sex offender registration laws, asking if making them longer or easier to revoke would suddenly make them 'penal' and trigger Ex Post Facto problems.
This shows a major concern about unintended consequences. Justice Alito is worried that ruling for the petitioner could unravel the Court's other precedents (like Smith v. Doe) where things that feel like punishment have been officially labeled 'civil' regulatory schemes. He is testing for a limiting principle.
She jokingly accused the government's lawyer of asking the Court to 'throw in absolutely everything' into its legal test so the government would have a way to distinguish this case from a future one. Justice Kavanaugh chimed in, telling the lawyer, 'You can just say yes.'
This moment of shared, skeptical laughter shows the justices see the government's proposed legal standard as unworkable and opportunistic. They view it as a 'kitchen sink' argument designed to win today without creating any clear rules for tomorrow, which is something courts generally dislike.
In his rebuttal, the petitioner's lawyer argued that ruling for the government and calling restitution 'civil' would 'completely upset the apple cart on the Seventh Amendment' (right to a jury in civil cases), while the Sixth Amendment issues from his side were less certain.
This was a savvy strategic move. He framed the choice for the Court not as a single constitutional issue, but as a choice between two potential constitutional problems. He argued that the government's path created a definite, massive constitutional problem, while his own path created a smaller, manageable one, making his position seem like the safer constitutional bet.
Arguments
Petitioner
The petitioner argues that the government is trying to punish Mr. Ellingburg with a law that didn't exist when he committed his crime, which is forbidden by the Constitution. The rule at issue is the Ex Post Facto Clause, which basically says the government can't go back in time to make a punishment for a crime worse than it was when the crime was committed. In this case, after Mr. Ellingburg's conviction, Congress passed the Mandatory Victim Restitution Act (MVRA), a law that extended the time the government had to collect restitution payments. The petitioner’s whole case rests on convincing the Court that this restitution—money a defendant is ordered to pay to their victim—is a form of criminal punishment. If it is a punishment, then applying the new, tougher collection rules to him is an unconstitutional retroactive penalty.
To prove restitution is a punishment, the petitioner points to how it functions in the real world. It's not treated like a normal civil debt, like a credit card bill. Instead, a judge imposes restitution as part of the criminal sentence, right alongside prison time and fines. The entire process is governed by the rules of criminal procedure, not civil court. Most importantly, if a defendant fails to pay restitution, they can be sent back to prison. The petitioner argues that this threat of imprisonment is the ultimate sign of a criminal penalty. A private citizen can't have you jailed for failing to pay a debt, but the government can for restitution, proving it's a consequence of the crime itself, not just a way to make the victim whole.
The other side argues that the main purpose of restitution is to compensate the victim, which makes it feel more like a civil remedy than a punishment. The petitioner responds that this is a false choice because a single penalty can serve multiple purposes. A prison sentence, for example, is clearly a punishment, but it also serves the separate purpose of protecting the public by keeping a dangerous person off the streets. The petitioner argues that restitution works the same way: it punishes the offender by forcing them to pay for their crime, and at the same time, it has the beneficial effect of compensating the victim. The fact that it helps the victim doesn't erase its nature as a punishment for the criminal.
Finally, the petitioner contends that history is on their side. Before the MVRA, a similar law existed, and courts universally agreed that the restitution it ordered was a criminal punishment. When Congress passed the MVRA, it didn't announce it was fundamentally changing restitution from a criminal penalty into a civil remedy. It simply made it mandatory in more cases. The petitioner adopts a justice's reasoning from the argument: making a penalty mandatory doesn't make it less of a punishment; it often makes it harsher. It's like when Congress removes a judge's discretion and imposes a mandatory minimum prison sentence. That action reinforces the punitive nature of the law, rather than changing it into something else entirely.
Respondent
The respondent argues that when a criminal is ordered to pay back their victim, that payment—called restitution—is officially part of their criminal punishment. This might sound strange, because the government is essentially agreeing with the criminal on a key point. The reason for this is strategic. The government is playing defense against a much bigger problem. If restitution were declared a "civil" remedy instead of a criminal one, it would create chaos. It would mean that every time a judge wanted to order a defendant to pay back a victim, the defendant could demand a completely separate jury trial under the Seventh Amendment to decide the amount, blowing up the efficiency of criminal sentencing. The government would rather call restitution a punishment and deal with the consequences than risk that systemic breakdown.
To prove restitution is a punishment, the government points directly to the law itself, the Mandatory Victim Restitution Act (MVRA). They argue that Congress’s language is crystal clear. The law repeatedly calls restitution a "penalty" and a "sanction." It's ordered against a "criminal defendant" during a "criminal sentencing" by a criminal judge, and it’s the government, not the victim, that prosecutes the case. This whole process looks, acts, and sounds like criminal punishment, not like a separate civil lawsuit where a victim sues for damages. The government also notes that the law that came before the MVRA was universally treated by courts as a form of criminal punishment, and when Congress updated the law, they doubled down on the features that made it punitive.
The government directly confronts the most obvious counterargument: that restitution is just about compensating the victim, not punishing the offender. Their response is that a single act can have two purposes. Just because restitution helps a victim does not mean it isn't also punishing the criminal. They argue that forcing an offender to pay for the specific harm they caused is a powerful form of punishment. It serves key criminal justice goals like rehabilitation (making the offender confront their actions) and deterrence (discouraging future crime) far more effectively than a generic fine paid to the government. In this view, making things right with the victim is not separate from the punishment; it is the punishment.
Ultimately, the government's entire argument is a calculated choice to avoid a worse outcome. By conceding that restitution is a punishment, they open the door to the petitioner's claim under the Ex Post Facto Clause, which forbids applying a new, harsher punishment to a past crime. However, the government believes it can still win that smaller fight later by arguing that the specific legal change in this case didn't actually increase the punishment, but merely changed how it was collected. They are willing to take that risk to protect the fundamental structure of the justice system, ensuring that judges can continue to order criminals to pay back their victims as a direct and immediate part of their sentence.