Restitution or Retaliation?

Xylee Alvarez

Oct 2025

The Supreme Court weighs whether or not criminal restitution under the Mandatory Victim Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause?

The Supreme Court touches on criminal restitution in Ellingburg v. United States.

The Supreme Court heard oral arguments in Ellingburg v. United States, a pivotal case examining whether the retroactive application of the Mandatory Victim Restitution Act (MVRA) constitutes a criminal punishment, thereby implicating the Ex Post Facto Clause of the Constitution. This clause prohibits laws that retroactively increase the punishment for a crime. 

The case dates back to 1995, when Holsey Ellingburg Jr. was convicted for his role in a bank robbery and sentenced to nearly 27 years in prison. At the time of his sentencing, restitution was governed by the Victim and Witness Protection Act (VWPA), which limited restitution obligations to 20 years post-conviction. However, in 1996, Congress enacted the MVRA, extending restitution obligations to 20 years after a defendant’s release from imprisonment and including interest. Ellingburg, having paid a position of the restitutio under the VWPA, now faces an increased obligation under the MVRA. He challenges this retroactive application, arguing it constitutes an unconstitutional increase in punishment. 

During oral arguments, the court grappled with the debate of whether restitution under the MVRA is punitive in nature. Amy Saharia, who is representing Ellingburg, argued that restitution serves as a criminal punishment, citing its imposition at sentencing, enforcement mechanisms, and its role in the criminal justice system. She referenced previous cases where the court recognized restitution as a punitive measure. On the other hand, Ashley Roberston, representing the government, contended that restitution is primarily a civil remedy aimed at compensating victims, not a punitive measure. She emphasized that the MVRA intended to ensure victims receive restitution, not to increase punishment. John Bash, appointed as an amicus curiae in support of the judgment below, supported the government’s position, arguing that the retroactive application of the MVRA does not violate the Ex Post Facto Clause. 

This case truly underscores the delicate balance between ensuring victims receive compensation and protecting individuals from retroactive punitive measures. While restitution serves a vital role in the justice system, its retroactive application raises significant constitutional concerns. The court's decision will have profound implications on the interpretation of the Ex Post Facto Clause and the scope of permissible. Justices' questions reflected this emotional tug of war, Justice Kagan especially seeming skeptical that restitution could be neatly separated from punishment. Justice Sotomayor voiced concern that retroactively applying new obligations could erode public trust in the stability of the justice system. This is a compelling case, and I know how vital it is to understand both sides of this argument. Every question in this case seems to reveal different kinds of compassion, some for the offender, some for the victims, and some for the rule of law itself. It is capturing the emotional weight of it all. 

I predict a 5-4 decision in favor of the United States. The majority will likely reason that restitution under the MVRA is primarily compensatory, not punitive, and therefore doesn't violate the Ex Post Facto Clause. The liberal justices, especially Sotomayor and Kagan, may dissent, emphasizing that retroactively expanding restitution obligations feels like an after-the-fact punishment that undermines fairness. Even so, I hope the court acknowledges that Justice isn't only about restitution or punishment, it is about trust. Especially in a world where our confidence in the government is constantly being tested, remembering how key it is to our democracy is essential. 

Sources

“Ellingburg v. United States.” Oyez.Org, www.oyez.org/cases/2025/24-482. Accessed 19 Oct. 2025.