SCOTUS Holds Restitution Is Criminal Sanction – Update for January 26, 2026

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CAPTAIN OBVIOUS SAYS RESTITUTION IS CRIMINAL PUNISHMENT

The ruling was short, simple, unanimous, and transpicuous to any federal defendant: last week, the Supreme Court ruled that restitution is a criminal penalty and not just some random civil judgment.

Thirty years ago, Holsey Ellingburg, Jr. robbed a Georgia bank with a sawed-off shotgun. He was convicted after a jury trial of 18 USC § 2113(a) and robbery and 18 USC § 924(c) using a firearm during a crime of violence.

Holsey served about 27 years in prison. By the time he got out in 2022, he had paid about $2,200 toward his $7,600 restitution obligation for the money he stole. His probation officer demanded that Holsey keep paying after his release. Holsey argued he didn’t have to.

Holsey’s restitution obligation arose under the Victim and Witness Protection Act of 1982. The VWPA only let courts collect restitution for 20 years after the judgment was entered, meaning that Holsey’s restitution obligation ended in about 2016. But sometime after Hosley’s robbery, Congress passed the Mandatory Victims Restitution Act. The MVRA extended a defendant’s obligation to pay restitution to “20 years after release from imprisonment.”

Holsey argued that the Constitution’s Ex Post Facto Clause of Article I, Section 9 of the Constitution applies to restitution orders. The Ex Post Facto Clause prohibits applying a new law that retrospectively criminalizes actions that were legal when committed or changes the punishment prescribed for a crime. The Government said restitution is not a criminal penalty but rather just a civil judgment to make a victim whole, so the MVRA could be applied to Holsey’s restitution obligation, even though it arose before the MVRA passed.

Last week, the Supreme Court disposed of the Government’s claim in a short 9-0 decision. Justice Kavanaugh wrote that “[r]estitution under the MVRA is plainly criminal punishment… Whether a law violates the Ex Post Facto Clause requires evaluating whether the law imposes a criminal or penal sanction as opposed to a civil remedy… When viewed as a whole, the MVRA makes abundantly clear that restitution is criminal punishment. The MVRA labels restitution as a “penalty” for a criminal “offense… Only a criminal defendant convicted of a qualifying crime may be ordered to pay restitution. Restitution is imposed at sentencing for that offense together with other criminal punishments such as imprisonment and fines. And at the sentencing proceeding where restitution is imposed, the Government, not the victim, is the party adverse to the defendant.”

Writing in the Sentencing Matters Substack on Ellingburg last fall, law professor Lula Hagos observed that

[c]riminal restitution — the money paid by a defendant to a victim — has grown into one of the most troubling, yet least examined, features of modern criminal sentencing… Restitution has quietly grown — both in scope and severity — into a sanction that can extend punishment for years, frequently without compensating victims… The Court will not be able to solve all criminal restitution’s woes in Ellingburg. But it should take the crucial step of acknowledging that criminal restitution is punishment subject to the Ex Post Facto Clause. Acknowledging restitution’s punitive nature would bring coherence to constitutional doctrine and prevent the government from imposing punishment without its safeguards…

As it is now, many Circuits hold that restitution cannot be challenged in a § 2255 motion because it is not a criminal sanction. Restitution is often imposed after the sentencing hearing in proceedings where the defendant is not present. The proofs needed to establish restitution are often quite thin. Ellingburg has the potential to change much of that.

Substack, Punishment by Another Name (October 13, 2025)

~ Thomas L. Root