Victims of crime, especially violent crime, are not mere witnesses. They have a special status under state and federal law and are entitled to certain rights, including the right to be heard, to be treated fairly, and in some cases, to get restitution. Until Tuesday, it was an open question of whether the restitution owed to them by the convicted defendant was part of the criminal punishment.
Whether the Mandatory Victims Restitution Act is considered legal punishment under the Constitution’s ex post facto clauses has been the subject of some debate in the lower courts. On Jan. 20, the U.S. Supreme Court issued a unanimous ruling answering that question in the affirmative under the unique facts of this case.
But what is the MVRA, how did it come to be, and why is this case a textbook example of the ex post facto clause in action?
Enacted by Congress in 1996, the MVRA was designed to ensure restitution for victims of certain federal crimes.
The statute made restitution mandatory for specified offenses, including violent crimes, property crimes, and fraud. It also adopted a broad definition of “victim,” extending beyond those directly harmed to also include family members and others who suffered direct and proximate harm as a result of the offense.
Finally, restitution under the MVRA is imposed at sentencing and enforced as part of the defendant’s criminal punishment.
The ex post facto clauses, located in Article I, Sections 9 and 10 of the Constitution, forbid Congress and the states from enacting ex post facto—literally, “from a thing done afterward”—laws. To understand why, it is necessary to delve into the historical and legal context, and there is no better source for doing so than the third edition of the “Heritage Guide to the Constitution.”
In Essay No. 70 of the guide, Evan C. Zoldan, associate dean for Academic Affairs at the University of Toledo College of Law, explains that despite well-documented historical concern about retroactive laws dating back to the founding of the United States, such laws often prove attractive to legislatures because they can serve as a form of retrospective “payback” for heinous crimes.
Zoldan argues that the Supreme Court has struggled to interpret the clauses for “all they are worth,” which has led to a confused and inconsistent legal framework.
To prove his point, Zoldan turns to perhaps the most influential Supreme Court case on the matter, Calder v. Bull from 1798.
In Calder, the Supreme Court identified four categories of laws forbidden by the clauses: laws that criminalize previously innocent conduct; laws that “aggravate” a crime or make it greater than when committed; laws that increase punishment after a crime was committed; and laws that alter the rules of evidence to make conviction easier.
While the Supreme Court has experimented with other frameworks over time, ex post facto jurisprudence seems to lead the court back to the Calder framework. At the conclusion of Zoldan’s essay, the guide’s first open question note poses a prescient question of law: Since the clauses prohibit laws that are punitive in nature, what exactly qualifies as punitive?
This question brings us to Tuesday’s ruling.
In a unanimous ruling, the U.S. Supreme Court voted to reverse the 8th U.S. Circuit Court of Appeals’ decision in Ellingburg v. United States and held that the Mandatory Victims Restitution Act imposes criminal punishment and therefore cannot be applied retroactively under the ex post facto clause. Justice Brett Kavanaugh delivered the opinion of the court.
The facts of the case are simple: Holsey Ellingburg Jr. committed the federal crimes of bank robbery and using a firearm during a crime of violence in December 1995. He was later convicted and sentenced and ordered to pay restitution of $7567.25. The catch here is that the MVRA became law on April 24, 1996, after he committed the crimes.
Turning to the opinion itself, the court applied its standard as laid out in Smith v. Doe, which requires an analysis of a statute’s text and structure. Kavanaugh concluded that 18 U.S.C. § 3663A(a)(1) imposes criminal punishment.
First, the text of the statute itself denotes restitution as a penalty to be imposed during sentencing rather than as civil damages. Second, failure to make restitution payments can result in a court’s alteration of supervised release or probation terms. Third, when restitution is imposed by a district court, the court must abide by procedures of criminal law rather than civil.
Returning to Smith v. Doe, Kavanaugh concluded that while the opinion allows for a defendant convicted of a relevant crime to register as a sex offender, the registration requirements were imposed through civil procedures, as opposed to the MVRA, which is imposed upon a criminal defendant in a criminal proceeding at sentencing.
Justice Clarence Thomas concurred in the result, joined by Justice Neil Gorsuch. Thomas concluded that the decision reflects a correct application of precedent as established in Calder v. Bull. Thomas emphasized that ex post facto laws are prohibited under Article I, Sections 9 and 10 of the United States Constitution.
But Thomas did not stop at constitutional text alone. He also turned to the writings of James Madison in “Objections to the New Constitution,” in “Pamphlets on the Constitution of the United States,” and the writings of Alexander Hamilton in “The Federalist Papers” as further evidence of his originalist claim.
Thomas also addressed one of the three open questions of law posed by Zoldan in “The Heritage Guide” and how it can be reconciled with the Calder framework.
Thomas identified two key distinctions to clarify Calder’s rightful place in the court’s jurisprudence. First, Calder did not involve the retroactive punishment of criminal conduct. Second, Calder limited the ex post facto clauses to laws imposing criminal punishment.
Taking a page from Zoldan, Thomas noted that subsequent decisions have neglected these distinctions, producing a confused framework. But what is the standard going forward to distinguish punitive from civil remedies?
Once again, Thomas argued for a return to a historical and textualist perspective. Turning to Blackstone’s distinction between private wrongs, which injure individuals, and public wrongs, which injure the sovereign, Thomas proposed that laws imposing punishment for public wrongs should fall within the ex post facto clauses, while laws addressing private disputes should not.
The ruling in Ellingburg is a victory not only for applying the Constitution as it was intended, but also as a coherent and clarifying landmark for future rulings that protect citizens from unjust retroactive punishment.
