Ellingburg v. United States

Restitution required under the Mandatory Victims Restitution Act of 1996 (MVRA) is a criminal punishment for the purposes of the Constitution's Ex Post Facto Clause. Justice Brett Kavanaugh authored the unanimous opinion of the Court. The determination of whether a law imposes a criminal punishment or a civil remedy is a matter of statutory construction, based on the law’s text and structure. The text and structure of the MVRA make it clear that the restitution it mandates is a criminal punishment. The Act itself labels restitution as a “penalty” for a criminal “offense.” An order of restitution can only be imposed on a criminal defendant after a conviction, and it is imposed at sentencing along with other criminal punishments like imprisonment and fines. Furthermore, the government, not the victim, is the opposing party in the sentencing proceeding where restitution is ordered. The MVRA’s placement within the U.S. Code also signifies its criminal nature, as it is codified in Title 18, titled “Crimes and Criminal Procedure,” within chapters governing sentencing. This conclusion is consistent with precedent, which has understood MVRA restitution as part of a criminal sentence. While the Act also serves a nonpunitive goal of compensating victims, this does not change its character as punishment. Unlike in a civil proceeding, victims do not have the power to initiate or settle the restitution process; it is a penalty imposed by the court as part of the government's criminal prosecution. Justice Clarence Thomas authored a concurring opinion, joined by Justice Neil Gorsuch, arguing that the Court’s modern Ex Post Facto Clause test is flawed and should be replaced with the original understanding that the clause applies to any retroactive law imposing a coercive penalty for a public wrong.