WASHINGTON — This week, the Supreme Court of the United States ruled in Ellingburg v. United States that restitution under the Mandatory Victims Restitution Act is criminal punishment, unanimously concluding that it can function as a “second sentence that lingers long after prison, supervision, and the rest of the criminal case [has] faded,” according to Forbes.
Forbes reports that although restitution “sounds like the rare part of the system that might actually help victims rather than merely punish defendants,” it often does not work out that way and instead becomes a process in which “defendants are hit with crushing financial obligations they cannot meet,” while victims are “told help is coming… even when actual repayment is unrealistic.”
As outlined by Bloomberg Law, the decision reversed a lower court ruling that “rejected Ellingburg’s challenge under the theory that the MVRA was not a criminal punishment,” holding instead that “the statutory text and structure of the MVRA demonstrate that restitution under the act is criminal punishment.”
Forbes explains that the ruling “means the government can no longer retroactively hike interest or extend payment deadlines on old cases, effectively moving the goalposts on people who have already served their time.”
According to Forbes, the basic facts of the case are “straightforward.” Ellingburg “committed his offense before the Mandatory Victims Restitution Act became law, but he was sentenced after its enactment and ordered to pay $7,567.25 in restitution.”
Bloomberg Law notes that this violated the Constitution’s Ex Post Facto Clause, which “bars the imposition of criminal penalties based on statutes that didn’t exist when the crime occurred.”
Originally, the Eighth Circuit “had held MVRA restitution was not punishment, meaning the Ex Post Facto Clause did not apply,” but in examining the statute’s language, Forbes reports that the MVRA “labels restitution as a ‘penalty’ for a criminal ‘offense,’ applies only to criminal defendants, and is imposed at sentencing alongside imprisonment and fines.”
Forbes adds that because unpaid restitution can affect supervision and lead to imprisonment, and because victims cannot control the process, the Court found the conclusion unavoidable. “Restitution under the MVRA is punishment,” the Court held.
As Bloomberg Law explains, criminal restitution was intended to be punitive rather than civil and therefore cannot be imposed or altered retroactively under the test established in Smith v. Doe, which addressed the constitutionality of retroactive legal requirements.
Forbes examines what labeling restitution as punishment “means in the real world,” arguing that it reshapes how criminal restitution should be evaluated. Restitution, the outlet writes, “has become a form of punishment whose compensation goals are eclipsed by punitive effects,” reflecting a system of “long-term financial control.”
For victims, Forbes explains, the system often creates expectations of compensation that never materialize.
Citing a report from the National Association of Criminal Defense Lawyers, Forbes reports that federal restitution debt totals about $110 billion, with roughly $100 billion deemed uncollectable.
Forbes further notes that restitution is frequently ordered in amounts that are impossible to collect, with the average federal restitution order exceeding $3.3 million, while many people ordered to pay restitution lack the means to do so, particularly as interest and penalties accumulate.
Quoting NACDL Executive Director Lisa Wayne, Forbes writes, “This ruling is a victory for the rule of law and for the thousands of individuals who have been shackled by debt long after their prison cells were opened. It is time for a system that offers true restoration and dignity, rather than a permanent cycle of despair.”
Forbes describes a “built-in flaw” of the MVRA: courts are generally prohibited from considering a person’s ability to pay when calculating restitution. As a result, a legal remedy framed as compensation becomes “punitive fiction,” with courts demanding full payment on paper while knowing it will never arrive, leaving people with life-altering debt and victims with promises unlikely to be fulfilled.
As Forbes notes, the Ellingburg decision “is not a complete solution, but it points directly toward reforms that are long overdue.” NACDL has also argued that restitution statutes barring consideration of ability to pay may violate the Eighth Amendment.
Forbes additionally highlights due process concerns, including post-sentencing restitution orders and the lack of uniform recognition across circuits of a right to be present at restitution hearings. If restitution is punishment, the outlet argues, “the process for imposing it should look like sentencing, not like an afterthought.”
Looking ahead, Forbes examines what reform could entail, suggesting that instead of rushing to set restitution numbers, courts should carefully determine who the victim is, what the actual loss was and what amount can realistically be paid without foreclosing a person’s ability to return to stable work, housing and family life.
The NACDL recommends amending federal law to require judges to consider a person’s financial resources and ability to pay, with Forbes adding that smaller, realistic orders paid consistently can provide more compensation than uncollectable sums that exist only on paper.
Emphasizing that “Ellingburg should be a beginning, not an endpoint,” Forbes concludes that the central question is whether the system is willing to reform punishment that no longer matches its stated purpose.
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