U.S. Supreme Court Holds MVRA Restitution Constitutes Criminal Punishment Under the Ex Post Facto Clause

On January 20, 2026, the U.S. Supreme Court ruled unanimously in Ellingburg v. United States, 2026 WL 135982 (U.S. Jan. 20, 2026), that restitution imposed under the Mandatory Victims Restitution Act of 1996 (MVRA) is “plainly” criminal punishment for purposes of the Ex Post Facto Clause of the Constitution.² The Court declared that the text and structure of the MVRA make clear that Congress intended restitution under the Act to be criminal.³

Background

The MVRA went into effect on April 24, 1996.⁴ Shortly thereafter, Petitioner Holsey Ellingburg, Jr. was sentenced for a crime he committed before the enactment of the MVRA and was ordered to pay $7,567.25 in restitution.⁵ Having not yet paid the full amount with interest, Petitioner raised an Ex Post Facto Clause challenge to his continued restitution obligation. The Eighth Circuit concluded that restitution is not criminal punishment under the MVRA and therefore did not violate the Ex Post Facto Clause.⁶ Both Petitioner and the United States Government agreed that the Eighth Circuit’s conclusion was erroneous.⁷ The Court reversed and remanded, holding that “the statutory text and structure of the MVRA demonstrate that restitution under that Act is criminal punishment.”⁸

Majority Opinion

In the majority opinion authored by Justice Kavanaugh, the Court explained that to determine whether a law violates the Ex Post Facto Clause under Smith v. Doe, 538 U.S. 84, 92 (2003), the court must look to the statute’s text and structure to ascertain whether the statute imposes a civil remedy or criminal penalty.⁹ Considering the MVRA’s text and structure, the Court determined that restitution under the MVRA is “plainly criminal punishment for purposes of the Ex Post Facto Clause.”¹⁰ As a whole, the Court found that several features of the MVRA are “sufficient” for restitution to constitute criminal punishment:¹¹

• The MVRA itself describes restitution as a “penalty” for a criminal “offense.”¹²
• The federal MVRA restitution framework is codified in the criminal code at Title 18, with the main statutory provisions, §3663 and §3663A, governing restitution orders contained in Chapter 232, entitled “Miscellaneous Sentencing Provisions.”¹³
• MVRA restitution may only be imposed on a criminal “defendant” following a “conviction” of a qualifying crime.¹⁴
• MVRA restitution is ordered at the sentencing phase, and various provisions of the MVRA refer to restitution as a “sentence.”¹⁵
• MVRA restitution is imposed together with other criminal punishments and in certain circumstances, it may be imposed in lieu of other penalties.¹⁶
• During the sentencing proceedings where MVRA restitution is ordered, the United States, and not the victim of the crime, is the adverse party.¹⁷
• When a defendant fails to make the requisite restitution payments, courts may resentence the defendant if the court determines that “alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence.”¹⁸
• When ordering restitution, a district court is bound by the Federal Rules of Criminal Procedure.¹⁹ The MVRA also directs the U.S. Sentencing Commission to promulgate criminal sentencing guidelines for restitution.²⁰
• The Supreme Court’s precedent also supports the plain statutory reading of the MVRA.²¹

In response to several amicus arguments, the Court considered that the ultimate goal of the MVRA, to compensate crime victims, is nonpunitive and is reiterated in several provisions of the MVRA.²² However, the Court further explained that with respect to restitution, victims do not have the ability to initiate or settle restitution proceedings like they would in a civil proceeding.²³ The Court ultimately found that even if Congress intended to “both punish and compensate,” the fact that Congress intended “to impose punishment” is sufficient to classify MVRA restitution as a criminal penalty.²⁴ The Court then considered Smith, which found mandatory registration as a sex offender was civil in nature.²⁵ However, the Court distinguished it from the case at hand because the legislature there adopted “distinctly civil procedures” for the imposition of mandatory reporting, while the MVRA is “labeled as a penalty . . . in the criminal code.”²⁶

The Court made the important clarification that holding does not mean that a restitution statute can never be civil, merely that the statutory text and structure of the MVRA are sufficient to hold that restitution under the MVRA is criminal punishment.²⁷

Concurrence

Justice Thomas, joined by Justice Gorsuch, issued a concurrence joining the majority opinion but arguing that the Court should restore the Calder v. Bull approach to the Ex Post Facto Clause.²⁸ Calder established that the Ex Post Facto Clauses forbid retroactive laws that impose “punishment” for a “crime.”²⁹ Justice Thomas criticized the Supreme Court’s modern understanding of the application of the Ex Post Facto Clauses, as one that is unnecessarily restricted to “legislative labeling” and involves convoluted “multifactor tests.”³⁰ Justice Thomas argued to restore the historical understanding of a “crime” under Calder as “an injury to the sovereign in its sovereign capacity” “regardless of whether they were nominally criminal or civil” and “punishment” as the “law’s coercive sanction—meaning a traditional deprivation of life, liberty, or property—redressing that public wrong.”³¹ Under this understanding, restitution under the MVRA would be subject to the Ex Post Facto Clauses because it was enforced against the Plaintiff by the United States and was being enforced to redress a community injury.³² Justice Thomas urges the Court to revisit this understanding in a future case.

Conclusions

The Supreme Court’s unanimous decision in Ellingburg v. United States provides clarity on the nature of restitution under the MVRA, holding that it constitutes criminal punishment subject to the Ex Post Facto Clause. While the opinion will have a direct effect on individuals who were ordered to pay restitution under the MVRA for crimes committed prior to its enactment, the decision will also have a wider impact on restitution generally and will force Congress to carefully consider whether new laws will retroactively affect existing restitution awards. Especially for defendants found guilty of white-collar crimes, restitution can be an enormous figure that follows individuals long after they have otherwise completed their criminal punishment. The Court’s decision in Ellingburg will ensure sentences of restitution under the MVRA receive the required constitutional scrutiny.

This decision should not, however, be read to open the floodgates to litigate restitution claims that fall outside the purview of the MVRA. As the decision emphasized, both the statutory text and the structure of the MVRA restrict the scope of its decision, and hence not all restitution statutes are necessarily criminal. This decision will have significant implications for defendants sentenced under the MVRA for crimes committed pre-enactment and provides important guidance on how courts will interpret restitution and similar remedial congressional schemes for the purposes of the Ex Post Facto Clause.

How Dechert Can Help

This guidance from the Supreme Court opens the door to further litigation challenging the constitutionality of restitution imposed under the MVRA. By asking the right questions and seeking legal guidance, defendants with potential constitutional challenges to MVRA restitution should consult with experienced counsel to evaluate their options and to carefully monitor further developments in this area of the law. The lawyers at Dechert can help.