Justices hold that restitution requirements imposed on federal convicts can’t be ratcheted up after the crime but before sentencing

Yesterday’s majority opinion by Brett Kavanaugh in Ellingburg v. United States well may be the shortest of the term – less than five pages for a unanimous court holding that the ex post facto clause of the Constitution applies to sanctions imposed in federal criminal proceedings under the Mandatory Victims Restitution Act.

The sole question in the case is whether the obligation of Holsey Ellingburg to pay restitution to the victims of his crimes, imposed under the MVRA, is sufficiently criminal that the ex post facto clause – which bars laws that retroactively increase one’s punishment for a crime – applies to it. Although the lower court saw it differently, Kavanaugh presents the answer as driven by several overlapping factors.

Most important is the language of the statute itself. Specifically, the statute labels restitution
“a ‘penalty’ for a criminal ‘offense,’” to be imposed on a “defendant” and only upon conviction. Procedurally, this obligation is also imposed as part of sentencing, where the government (as prosecutor) is the adverse party, not the victim.

Kavanaugh also emphasizes that the statute is codified in Title 18 of the federal statutes (the place for statutes about “Crimes and Criminal Procedure”), within chapters about “Sentencing” and “Miscellaneous Sentencing Provisions.” Similarly, the primary determinant of the amount of the restitution obligations is a group of sentencing guidelines promulgated, at Congress’ direction, by the U.S. Sentencing Commission.

The argument left little doubt that this would be the result. The only question was whether anybody would bother to disagree, and the answer is no. The sole separate writing is from Justice Clarence Thomas, joined by Justice Neil Gorsuch, who offers a lengthy concurrence (almost four times as long as Kavanaugh’s opinion) arguing that the court should apply the ex post facto clause even more broadly than it has – to “[m]any laws that are nominally civil today.”

Ultimately, the result in this case was so obvious that the opinion broke no new ground, and I expect it to sink more or less without a trace, not even useful as a source for lower-court opinions.

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