Amicus Curiae Brief — Holsey Ellingburg, Jr., Petitioner v. United States

No. 24-482

In the Supreme Court of the United States

__________

HOLSEY ELLINGBURG, JR.,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

__________

BRIEF OF THE CATO INSTITUTE AND FINES

AND FEES JUSTICE CENTER AS AMICI

CURIAE IN SUPPORT OF PETITIONER

__________

FINES AND FEES JUSTICE

CENTER

185 W. Broadway, C-538

New York, NY 10013

June 30, 2025

Matthew P. Cavedon

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

matt@amagi.info

i

QUESTION PRESENTED

Whether criminal restitution under the Mandatory

Victim Restitution Act (MVRA) is penal for purposes

of the Ex Post Facto Clause.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ................................................................ 2

ARGUMENT ................................................................ 4

I. CRIMINAL RESTITUTION IS

PUNISHMENT UNDER MODERN

PRECEDENT. ...................................................... 4

II. CRIMINAL RESTITUTION IS

PUNISHMENT UNDER HISTORICAL

AUTHORITIES................................................... 10

III.THIS COURT SHOULD REVIVE A

BROADER UNDERSTANDING OF

WHAT QUALIFIES AS CRIMINAL

PUNISHMENT. .............................................. 15

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. United States, 509 U.S. 544

(1993) .................................................................. 5, 19

Ames v. Ohio Dept. of Youth Servs., 221 L. Ed.

2d 929 (2025) .......................................................... 16

Austin v. United States, 509 U.S. 602 (1993)............ 19

Calder v. Bull, 3 U.S. 386 (1798) ........................ 13, 14

Creel v. CIR, 419 F.3d 1135 (11th Cir. 2005)............ 10

Dept. of Rev. of Mont. v. Kurth Ranch, 511

U.S. 767 (1994) ................................................... 5, 19

District of Columbia v. Heller, 554 U.S. 570

(2008) ...................................................................... 17

Elder v. Holloway, 510 U.S. 510 (1994) .................... 17

Hester v. United States, 586 U.S. 1104 (2019)

........................................................................ 5, 6, 11

Hudson v. United States, 522 U.S. 93 (1997)

.................................................................... 17, 18, 19

Hughey v. United States, 495 U.S. 411 (1990) ............ 5

Kansas v. Hendricks, 521 U.S. 346 (1997) .... 5, 6, 8, 16

Kelly v. Robinson, 479 U.S. 36 (1986) ........... 6, 7, 9, 10

Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963) ...................................................................... 17

Krieg v. Missouri, 107 U.S. 221 (1883) ..................... 14

Lipke v. Lederer, 259 U.S. 557 (1922) ....................... 15

iv

Manrique v. United States, 581 U.S. 116

(2017) ........................................................................ 6

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597

U.S. 1 (2022) ........................................................... 19

Paroline v. United States, 572 U.S. 434 (2014)

...................................................................... 5, 6, 8, 9

Pasquantino v. United States, 544 U.S. 349

(2005) .................................................................... 5, 6

Smith v. Doe, 538 U.S. 84 (2003) ........................ 15, 17

United States v. Anthony, 25 F.4th 792

(10th Cir. 2022) ........................................................ 8

United States v. Bach, 172 F.3d 520

(7th Cir. 1999) ........................................................ 10

United States v. Bajakajian, 524 U.S. 321

(1998) .................................................................... 5, 8

United States v. Bearden, 274 F.3d 1031

(6th Cir. 2001) .......................................................... 9

United States v. Brown, 744 F.2d 905

(2d Cir. 1984) ........................................................ 7, 9

United States v. Bruchey, 810 F.2d 456

(4th Cir. 1987) .......................................................... 6

United States v. Carrara, 49 F.3d 105

(3d Cir. 1995) ...................................................... 7, 10

United States v. Edwards, 162 F.3d 87

(3d Cir. 1998) ...................................................... 6, 10

United States v. James Daniel Good Real

Prop., 510 U.S. 43 (1993) ....................................... 20

United States v. Keith, 754 F.2d 1388

(9th Cir. 1985) .......................................................... 6

v

United States v. Norwood, 49 F.4th 189

(3d. Cir. 2022) ....................................... 2, 3, 6, 14, 20

United States v. One Assortment of 89

Firearms, 465 U.S. 354 (1984) ......................... 19, 20

United States v. Rahimi, 602 U.S. 680 (2024) .......... 16

United States v. Ritchie, 858 F.3d 201

(4th Cir. 2017) .......................................................... 6

United States v. Savoie, 985 F.2d 612

(1st Cir. 1993) ........................................................... 9

United States v. Sheinbaum, 136 F.3d 443

(5th Cir. 1998) .......................................................... 9

United States v. Sleight, 808 F.2d 1012

(3d Cir. 1987) ............................................................ 6

United States v. Ursery, 518 U.S. 267 (1996) ..... 19, 20

United States v. Ward, 448 U.S. 242 (1980) ....... 15, 16

United States v. Ziskind, 471 F.3d 266

(1st Cir. 2006) ........................................................... 9

United States v. Zukerman, 897 F.3d 423

(2d Cir. 2018) ............................................................ 6

Weaver v. Graham, 450 U.S. 24 (1981) ..................... 15

Statutes

18 U.S.C. § 2248........................................................... 2

18 U.S.C. § 3612(b) ...................................................... 9

18 U.S.C. § 3612(c) ....................................................... 9

18 U.S.C. § 3613(b) ...................................................... 2

18 U.S.C. § 3614(a) ...................................................... 6

18 U.S.C. § 3614(b) .................................................. 6, 8

vi

18 U.S.C. § 3663........................................................... 2

18 U.S.C. § 3663A ........................................................ 2

18 U.S.C. § 3663A(a)(1) ............................................... 4

Other Authorities

PHILIP B. KURLAND & RALPH LERNER, 3 THE

FOUNDERS’ CONSTITUTION (web ed., 1986)

.................................................................... 11, 13, 14

WILLIAM BLACKSTONE, COMMENTARIES ............... 12, 13

Work Programs, BUREAU OF PRISONS (last

visited June 4, 2025) ................................................ 3

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999 and focuses on

the scope of substantive criminal liability, the proper

and effective role of police in their communities, the

protection of constitutional and statutory safeguards

for criminal suspects and defendants, citizen

participation in the criminal justice system, and

accountability for law enforcement.

The Fines and Fees Justice Center (“FFJC”) is a

national center for advocacy, information, and

collaboration on effective solutions to the unjust and

harmful imposition and enforcement of fines and fees

in state and local courts. FFJC’s mission is to create a

justice system that treats individuals fairly, ensures

public safety, and is funded equitably. As a national

hub for information, resources, and technical

assistance on fines and fees, FFJC works with

impacted communities, researchers, advocates,

legislators, justice system stakeholders, and media

across the nation. FFJC also provides amicus curiae

assistance at the state and federal level in cases where

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amici funded

its preparation or submission.

2

issues of economic justice intersect with state and

constitutional law.

This case concerns amici because the decision

below mischaracterizes a criminal punishment as a

civil remedy removed from the protection of the Ex

Post Facto Clause.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

In 1995, when Petitioner Holsey Ellingburg, Jr.,

robbed a bank, federal criminal restitution was

governed by the Victim and Witness Protection Act

(VWPA).2 The VWPA provided that a defendant’s

liability to pay restitution ended twenty years after the

entry of judgment.3 Then, in 1996, Congress enacted

the Mandatory Victim Restitution Act (MVRA), which

extended the liability period to twenty years after a

defendant’s release from imprisonment and required

that restitution include interest.4 The MVRA’s

drafters apparently anticipated the possibility that its

retroactive application might violate the Ex Post Facto

Clause: Congress explicitly made the Act retroactive

only “to the extent constitutionally permissible.”5

2 Cert. Pet. at 5; 18 U.S.C. § 3663 (1994).

3 18 U.S.C. § 3613(b) (1994).

4 Cert. Pet. at 4; 18 U.S.C. §§ 3613(b) (2018), 3663A.

5 United States v. Norwood, 49 F.4th 189, 196 (3d. Cir. 2022)

(quoting 18 U.S.C. § 2248 (statutory notes)).

3

The issue in this case is whether that concern was

correct. Mr. Ellingburg’s sentence included just shy of

27 years’ imprisonment and $7567.25 in restitution.6

He paid $2054.04 toward this during the twenty-year

period authorized by the VWPA.7 In the past three

years, he has returned to society, living with his

fiancée and trying to make ends meet.8 However, his

probation officer maintains that he still has to make

$100 monthly restitution payments and the

Government says he now owes $13,476.01 total—

almost twice as much as his sentence originally

imposed and far more than he owed at the close of the

VWPA restitution period.9

Mr. Ellingburg seeks judicial relief. The district

court held that the MVRA’s extension of the

restitution period did not increase his punishment.10

The Eighth Circuit instead applied its own precedent

6 Cert. Pet. at 5.

7 Id. Federal prisoners are paid for work at hourly rates of

just 12 to 40 cents. Work Programs, BUREAU OF PRISONS,

https://tinyurl.com/yvcdeh5r (last visited June 4, 2025).

8 Cert. Pet.

at 5–6.

9 Id. at 6; cf. Norwood, 49 F.4th at 216–17 (“For a defendant

. . . who from the start owed more in restitution than he would

likely ever be able to pay, [the VWPA’s twenty-year limit] was

significant; it meant that he could reasonably expect that the

Government would only be able to collect on whatever funds he

acquired over the course of twenty years while incarcerated,

likely much less than the amount listed in his restitution order.”).

10 Cert. Pet. App’x 15a.

4

holding that criminal restitution is not subject to the

Ex Post Facto Clause at all because it is a civil remedy

rather than a criminal punishment.11 Two of the three

panel members wrote a concurring opinion criticizing

this precedent, but the Eighth Circuit denied

rehearing en banc.12

After this Court granted Mr. Ellingburg’s cert

petition, the Government decided not to defend the

Eighth Circuit’s decision and to instead file a brief in

support of Mr. Ellingburg. Amici are pleased to join

the parties in asking this Court to vacate the decision

below. Criminal restitution is punishment under this

Court’s modern precedent. Historical authorities

support this conclusion, too. While those are adequate

reasons to rule in Mr. Ellingburg’s favor, this Court

should also revive a broader understanding of what

qualifies as criminal punishment.

ARGUMENT

I.

CRIMINAL RESTITUTION IS PUNISHMENT

UNDER MODERN PRECEDENT.

Criminal restitution is routinely treated as

“penal”—as criminal punishment—under modern

precedent. The MVRA itself refers to criminal

restitution as a “penalty.” 18 U.S.C. § 3663A(a)(1).

That statute is codified in Title 18 alongside other

federal criminal laws. Criminal restitution has

11 Id. 5a–7a (per curiam).

12 Id. 1a7a–8a (Melloy, J., concurring).

5

commonly recognized hallmarks of criminal

punishment. Hester v. United States, 586 U.S. 1104,

1107 (2019) (Gorsuch, J., dissenting from denial of

cert.). It is imposed using the government’s

prosecutorial powers. Paroline v. United States, 572

U.S. 434, 456 (2014); see also Pasquantino v. United

States, 544 U.S. 349, 364 (2005). It is imposed at the

close of a criminal proceeding, requires the defendant

to be convicted, and “cannot be imposed upon an

innocent [person].” United States v. Bajakajian, 524

U.S. 321, 328 (1998) (holding that criminal asset

forfeiture “constitutes punishment”); see also Kansas

v. Hendricks, 521 U.S. 346, 362 (1997) (holding that a

law was not criminal punishment because it did not

“affix culpability for prior criminal conduct”); Dept. of

Rev. of Mont. v. Kurth Ranch, 511 U.S. 767, 781–82

(1994) (“[T]his so-called tax is conditioned on the

commission of a crime. That condition is significant of

penal and prohibitory intent . . . .”) (citation and

quotation marks omitted).

Criminal restitution is limited to the amount of loss

caused by the offense of criminal conviction. Hughey v.

United States, 495 U.S. 411, 420 (1990). It is imposed

in personam—a classification that in the asset

forfeiture context has “historically been treated as

punitive.” Bajakajian, 524 U.S. at 332; see also

Alexander v. United States, 509 U.S. 544, 558 (1993).

It is inseparable from criminal sentences, supervised

release, and probation. Manrique v. United States, 581

6

U.S. 116, 118 (2017).13 Failure to pay it is punished

through criminal justice measures and collateral

consequences, such as incarceration; supervision; loss

of the rights to vote, have firearms, and serve on juries;

and drivers-license revocation.14

As with other criminal punishments, criminal

restitution is imposed in part for penological reasons.

Paroline, 572 U.S. at 470 (Roberts, C.J., dissenting).15

It is imposed to advance retributive as well as

“rehabilitative and deterrent goals.” Kelly v. Robinson,

479 U.S. 36, 49 (1986). It thus “serves purposes that

differ from (though they overlap with) the purposes of

tort law.” Paroline, 572 U.S. at 453 (majority op.). It is

meant “to mete out appropriate criminal punishment”

even as it also benefits victims. Pasquantino, 544 U.S.

at 365; see also Hendricks, 521 U.S. at 361–62; United

States v. Zukerman, 897 F.3d 423, 433 (2d Cir. 2018)

13 See also United States v. Edwards, 162 F.3d 87, 91 (3d Cir.

1998); United States v. Bruchey, 810 F.2d 456, 461 (4th Cir. 1987)

(“[B]ecause [criminal restitution] is part of the sentencing process

it is fundamentally ‘penal’ in nature.”); United States v. Sleight,

808 F.2d 1012, 1020 (3d Cir. 1987) (“[R]estitution . . . is imposed

as a part of sentencing and remains inherently a criminal

penalty.”).

14 18 U.S.C. §§ 3614(a)–(b); Hester, 586 U.S. at 1106 (Gorsuch,

J., dissenting from denial of cert.); Norwood, 49 F.4th at 219.

15 See also United States v. Ritchie, 858 F.3d 201, 214 (4th Cir.

2017); cf. United States v. Keith, 754 F.2d 1388, 1391 (9th Cir.

1985) (“Congress intended restitution . . . to be a criminal penalty

carrying the stigma associated with other authorized criminal

sanctions.”).

7

(approving of how criminal restitution “personally

punished” the defendant). “As with any other condition

of a probationary sentence it is intended as a means to

insure the defendant will lead a law-abiding life

thereafter.” Kelly, 479 U.S. at 46 (citation and

quotation marks omitted).

Restitution is an effective rehabilitative

penalty because it forces the defendant

to confront, in concrete terms, the harm

his actions have caused. Such a penalty

will affect the defendant differently than

a traditional fine, paid to the State as an

abstract and impersonal entity, and

often calculated without regard to the

harm the defendant has caused.

Similarly, the direct relation between

the harm and the punishment gives

restitution a more precise deterrent

effect than a traditional fine.

Id. at 49 n.10.16 Criminal restitution also has generaldeterrence aims like other forms of criminal

16 See also United States v. Carrara, 49 F.3d 105, 108 (3d Cir.

1995) (“[R]estitution is rehabilitative because it permits or indeed

requires that offenders personally face what they have done and,

at least partially, atone for their legal transgressions by direct

action in the form of a positive personal performance.”); United

States v. Brown, 744 F.2d 905, 909 (2d Cir. 1984) (“Restitution

undoubtedly serves traditional purposes of punishment. The

prospect of having to make restitution adds to the deterrent effect

of imprisonment and fines, penalties that might seem to some

offenders less likely to be imposed than restitution. Restoring the

8

punishment. Bajakajian, 524 U.S. at 329; see also

Hendricks, 521 U.S. at 361–62; id. at 373 (Kennedy, J.,

concurring) (“[R]etribution and general deterrence are

reserved for the criminal system alone.”); United

States v. Anthony, 25 F.4th 792, 798 (10th Cir. 2022)

(Tymkovich, J.). Failure to pay criminal restitution

can be punished with incarceration under the MVRA

only based on the penologically relevant finding that

“in light of the nature of the offense and the

characteristics of the person, alternatives to

imprisonment are not adequate to serve the purposes

of punishment and deterrence.” 18 U.S.C. § 3614(b)(2).

Criminal restitution is assessed with reference to

“special reason[s]” not applicable to civil law. Paroline,

572 U.S. at 453. Civil law rules “cannot be imported

into criminal restitution and applied to their utmost

limits without due consideration of these differences.”

Id. at 454. Criminal restitution can be imposed only

subject to criminal due process. Id. at 471 (Roberts,

C.J., dissenting). It is apportioned not to make the

victim whole as soon as possible, but in light of

penological considerations, including defendants’

victim’s property also serves the legitimate penal purpose of

vindicating society’s interest in peaceful retribution. Finally,

restitution can be a useful step toward rehabilitation, a

consequence specifically emphasized by Congress. These penal

purposes have long been promoted through the imposition of fines

payable to the Treasury; their achievement is not lessened

because the immediate beneficiary of a restitution order is the

crime victim.”) (internal citation omitted).

9

“respective causal roles and their own circumstances

so that more are made aware, through the concrete

mechanism of restitution, of the impact of [criminal

offenses] on victims.” Id. at 462 (majority op.).

There are “manifest procedural differences

between criminal sentencing and civil tort lawsuits.”

Id. at 453. Criminal restitution is collected by the

Attorney General.17 Victims have “no control over the

amount of restitution awarded or over the decision to

award restitution.” Kelly, 479 U.S. at 52.18 Criminal

restitution cannot be waived through civil

settlements.19 Criminal restitution does not preclude

separate civil relief (albeit with the possibility of an

17 18 U.S.C. §§ 3612(b)–(c).

18 See also United States v. Ziskind, 471 F.3d 266, 270 (1st

Cir. 2006) (“This is because . . . restitution ordered as part of a

criminal sentence is a criminal penalty, not a civil remedy.”);

Brown, 744 F.2d at 910 (“[U]nlike a civil suit, the victim . . . .

cannot control the presentation of evidence during either the

criminal trial or the sentencing hearing and is not even

guaranteed the right to testify about the extent of his losses.

Neither can he appeal a determination he deems inadequate.”).

19 United States v. Bearden, 274 F.3d 1031, 1041 (6th Cir.

2001); United States v. Sheinbaum, 136 F.3d 443, 448 (5th Cir.

1998); United States v. Savoie, 985 F.2d 612 (1st Cir. 1993) (Selya,

J.) (“[Criminal restitution] is a criminal penalty meant to have

deterrent and rehabilitative effects. Private parties cannot simply

agree to waive the application of a criminal statute.”) (internal

citation omitted).

10

offset).20 It “does not create . . . a debtor-creditor

relationship” between a defendant and a victim. Kelly,

479 U.S. at 46 (citation and quotation marks omitted).

It cannot be discharged in bankruptcy proceedings—a

holding this Court reached partly by analogy to

criminal “fines and penalties.” Id. at 48 (citation

omitted).

The MVRA, then, does not merely insert a civil

remedy into criminal proceedings.21 Criminal

restitution is penal under modern precedent, and as

such, it is properly subject to the Ex Post Facto Clause.

II. CRIMINAL RESTITUTION IS PUNISHMENT

UNDER HISTORICAL AUTHORITIES.

Modern

precedent

reflects

historical

understandings of criminal restitution, and the

original meaning of the Ex Post Facto Clause supports

extending its reach to criminal restitution. Criminal

restitution is older than fines and imprisonment, “and

in the earliest penal codes, it was always awarded to

the victim of a property crime—usually in addition to

punishment.”22 By the reign of King Henry VIII,

English law restricted restitution to those stolen goods

identified in a criminal indictment and found by a jury

Creel v. CIR, 419 F.3d 1135, 1140 (11th Cir. 2005);

Edwards, 162 F.3d at 91.

20

21 United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999)

(reaching the same holding as the decision below).

Carrara, 49 F.3d at 108; see also id. n.3 (discussing

restitution in the 4000-year-old Code of Hammurabi).

22

11

to be stolen. Hester, 586 U.S. at 1107 (Gorsuch, J.,

dissenting from denial of cert.). Nineteenth-century

American juries were similarly tasked with finding the

value of stolen property before restitution could be

imposed. Id. (collecting cases). Criminal restitution

was integral to criminal proceedings.

Originally understood, the Ex Post Facto Clause

limits the retroactivity of criminal punishments like

criminal restitution. Ex post facto laws were roundly

condemned at the time of the Founding. Oliver

Ellsworth thought “there was no lawyer, no civilian

who would not say that ex post facto laws were void of

themselves.”23 James Wilson thought explicitly

prohibiting them could imply “that we are ignorant of

the first principles of Legislation.”24

John Dickinson reported to the Constitutional

Convention that he consulted William Blackstone’s

Commentaries and found that the term “ex post facto”

applied only to criminal laws.25 Blackstone lends

support to the characterization of criminal restitution

as criminal punishment. Like modern authorities, he

thought criminal punishment addressed harm done to

the public rather than a private person and was

2 RECORDS OF THE FEDERAL CONVENTION 375 (Madison,

Aug. 22, 1787) in PHILIP B. KURLAND & RALPH LERNER, 3 THE

FOUNDERS’ CONSTITUTION (web ed., 1986), available at

https://press-pubs.uchicago.edu/founders/.

23

24 Id.

25 Id. at 448 (Madison, Aug. 29).

12

prosecutable only by the government.26 He identified

robbery—Mr. Ellingburg’s offense—as a central

example of a criminal wrong.27

Blackstone also wrote about criminal restitution

(which was unavailable for robbery in his time because

it was a capital offense punished by forfeiture of life

and estate).28 He said victims could receive civil

remedies for crimes injuring them.29 Additionally, a

defendant who created an injurious public nuisance

could “be compelled to make ample satisfaction, as

well for the private injury, as for the public wrong.”30

The law took

a double view: viz. not only to redress the

party injured, by either restoring to him

his right, if possible; or by giving him an

equivalent . . . but also to secure to the

public the benefit of society, by

preventing or punishing every breach

and violation of those laws, which the

sovereign power has thought proper to

26 4 WILLIAM BLACKSTONE, COMMENTARIES *2, *5.

27 Id.

28 Id. at *6.

29 Id.

30 Id. at *6–7.

13

establish, for the government

tranquility of the whole.31

and

Though Blackstone described restitution as at least

partly civil, he also considered retribution and

deterrence to be the law’s responses to crimes.

Criminal laws were the Ex Post Facto Clause’s

original concern. James Iredell praised the Clause as

“one of the most valuable parts of the new

constitution.”32 He named ex post facto laws “the

instrument of some of the grossest acts of tyranny that

were ever exercised.”33 The prohibition on them was

“worth ten thousand declarations of rights”—and the

foundation of every American’s “pride in his security”

that his actions today “cannot be tortured into guilt

and danger tomorrow.”34

Iredell’s reference to “guilt and danger” aligns with

later authorities. In 1798’s Calder v. Bull, Justice

Chase wrote that the Clause was meant to prevent

measures that “inflicted greater punishment, than the

law annexed to the offense.” 3 U.S. 386, 389 (1798)

(Chase, J., seriatim). It protected Americans from

“injury, or punishment.” Id. at 390. Any law that

31 Id. at *7.

32 KURLAND & LERNER, supra, doc. 10, James Iredell, Marcus,

Answers to Mr. Mason’s Objections to the New Constitution, 1788

PAMPHLETS 368.

33 Id.

34 Id.

14

“changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when

committed” was “manifestly unjust and oppressive.”

Id. at 390–91.35 In the same case, Justice Paterson

agreed that the Clause applied to “crimes, pains, and

penalties.” Id. at 396 (Paterson, J.) (seriatim). Iredell,

by then a justice of the Court, confirmed that Congress

could not “increase the degree of punishment

previously denounced for any specific offence.” Id. at

400 (Iredell, J.) (seriatim).

According to Joseph Story’s 1833 evaluation, too,

the Clause covered measures that “inflict penalties on

the person.”36 Fifty years later, this Court held that

the Clause “protect[s] the individual rights of life and

liberty against hostile retrospective legislation.” Krieg

v. Missouri, 107 U.S. 221, 229 (1883).

The harm the Clause aimed to prevent was

criminal punishment, which this Court historically

defined in a way that covers criminal restitution. In

1922, the Court held that “punishment for infraction

of the law” that is “primarily designed to define and

35 Cf. Norwood, 49 F.4th at 215 (holding that the Ex Post

Facto Clause “ensures that individuals have fair warning . . . and

that defendants know the range of punishments that are possible

during the adjudication of their case, so that they can plea

bargain and strategize effectively”) (citations and internal

quotation marks omitted).

KURLAND & LERNER, supra, doc. 15, JOSEPH STORY, 3

COMMENTARIES ON THE CONSTITUTION: §§ 1338–39 (1833).

36

15

suppress crime” qualifies as criminal in nature. Lipke

v. Lederer, 259 U.S. 557, 561–62 (1922).

Criminal punishment has long been understood as

that which inflicts retribution for public wrongs and

seeks to generally deter them. Criminal restitution

does this, so it fits neatly within the original reach of

the Ex Post Facto Clause.

III. THIS

COURT

SHOULD

REVIVE

A

BROADER UNDERSTANDING OF WHAT

QUALIFIES AS CRIMINAL PUNISHMENT.

Modern and historical understandings of criminal

restitution as criminal punishment are reason enough

to vacate the judgment below. However, this case also

presents this Court with an opportunity to revisit

doctrinal overcomplications. Criminal punishment is

defined differently for different constitutional

provisions—and sometimes, much too narrowly.

Ex Post Facto Clause doctrine is sometimes put

simply: a law is unconstitutional if it is retrospective

and disadvantageous to an offender. Weaver v.

Graham, 450 U.S. 24, 29 (1981). At other times,

though, the line between criminal punishments and

civil measures has been described nebulously. In

Smith v. Doe, 538 U.S. 84, 92–93 (2003), the Court

endorsed

“statutory

construction”

featuring

“considerable deference” to legislative intent.37 Taken

to its extreme, this theory “peddles a modern version”

37 See also United States v. Ward, 448 U.S. 242, 248 (1980).

16

of the abuses that inspired the Ex Post Facto Clause.

United States v. Rahimi, 602 U.S. 680, 776 (2024)

(Thomas, J., dissenting). It lets “majoritarian

interests” decide the Clause’s reach. Id. The Court

should “remain wary of any theory . . . that would

exchange” constitutional limits “for vague (and

dubious) principles with contours defined by whoever

happens to be in power.” Id. at 777.

Even a tamer reading of Smith is troubling. That

case held that “registration and reporting obligations

that are imposed on convicted sex offenders and on no

one else as a result of their convictions”—and enforced

through “mandatory conditions,” including the threat

of incarceration—are not criminal punishment. Id. at

102 (majority op.); id. at 113 (Stevens, J., dissenting in

part and concurring in the judgment in part); contrast

Hendricks, 521 U.S. at 362 (describing a law as “not

retributive because it does not affix culpability for

prior criminal conduct.”). This result reflects “the

problems that arise when judges create atextual legal

rules and frameworks.” Ames v. Ohio Dept. of Youth

Servs., 221 L. Ed. 2d 929, 939 (2025) (Thomas, J.,

concurring).38 Justice Stevens’s Smith dissent

criticized manipulable “multifactor tests” and would

have held that criminal punishment “(1) is imposed on

everyone who commits a criminal offense, (2) is not

See also id. (“Judge-made doctrines have a tendency to

distort the underlying statutory text, impose unnecessary

burdens on litigants, and cause confusion for courts.”).

38

17

imposed on anyone else, and (3) severely impairs a

person’s liberty.” Smith, 538 U.S. at 113 (Stevens, J.,

dissenting in part and concurring in the judgment in

part). This simpler approach squares neatly with

historical and modern understandings of criminal

punishment.

In lieu of this, the Court has held that if a

legislature intends a statute to be civil, “only the

clearest proof will suffice to override legislative intent

and transform what has been denominated a civil

remedy into a criminal penalty.” Hudson v. United

States, 522 U.S. 93, 100 (1997). This approach is

misdirected. The question should be whether a

measure is criminal punishment within the meaning

of the Constitution. “Constitutional rights are

enshrined with the scope they were understood to have

when the people adopted them, whether or not future

legislatures . . . think that scope too broad.” District of

Columbia v. Heller, 554 U.S. 570, 634–35 (2008).

Litigants do not bring forward “proof” to “transform”

legislative enactments into constitutional subject

matter. Cf. Elder v. Holloway, 510 U.S. 510, 516 (1994)

(holding that “a question of law” should not be

distorted into “legal facts” a plaintiff must plead). The

Constitution requires analysis, not alchemy.

The analysis only goes further astray as the Court

demands “proof” that something is a criminal

punishment in keeping with seven (apparently nonexhaustive) “guideposts” set out in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168–69 (1963):

18

(1) whether the sanction involves an

affirmative disability or restraint; (2)

whether it has historically been regarded

as a punishment; (3) whether it comes

into play only on a finding of scienter; (4)

whether its operation will promote the

traditional aims of punishment—

retribution and deterrence; (5) whether

the behavior to which it applies is

already a crime; (6) whether an

alternative purpose to which it may

rationally be connected is assignable for

it; and (7) whether it appears excessive

in relation to the alternative purpose

assigned.39

To be sure, many of these factors undisputedly

support treating criminal restitution as criminal

punishment. As detailed above, criminal restitution

has historically been treated as a punishment, it is

imposed only after a finding of culpability, it is

imposed for the sake of retribution and deterrence, and

it is imposed following the entry of a criminal

conviction. But despite this, in the Double Jeopardy

Clause context, this Court has sometimes held that

parties challenging monetary penalties cannot

perform the magic necessary for these to count as

criminal punishment—even if they are motivated by

39 Hudson, 522 U.S. at 99–100 (internal quotation marks and

brackets omitted).

19

penological purposes and “punitive.”40 A two-step,

seven-plus-factor test inquiring into how things

“appear” to judges, one that sometimes excludes

penological punitive measures from the meaning of

criminal punishment, is the result of this Court

substituting strong legislative deference for clear

constitutional analysis. Cf. N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1, 22–24 (2022) (criticizing

“judge-empowering” doctrinal tests in favor of

constitutional text, history, and tradition) (citation

omitted).

Another area of doctrinal disorder is in rem asset

forfeiture, which has many of the same hallmarks of

punishment as criminal restitution. It overlaps with

criminal proceedings.41 It is exacted only against

contraband “or in its broadest reach, to proceeds

traceable to unlawful activity.”42 It depends on “the

notion that the owner has been negligent in allowing

his property to be misused and that he is properly

punished for that negligence.”43 Nevertheless, the

40 Id. at 102, 104; Kurth Ranch, 511 U.S. at 779–80.

41 United States v. One Assortment of 89 Firearms, 465 U.S.

354, 366 (1984).

42 Alexander, 509 U.S. at 563 (Kennedy, J., dissenting).

43 Austin v. United States, 509 U.S. 602, 615 (1993); see also

id. at 625 (Scalia, J., concurring in part and concurring in the

judgment) (“Punishment is being imposed . . . .”); United States v.

Ursery, 518 U.S. 267, 315 (1996) (Stevens, J., concurring in the

judgment in part and dissenting in part) (“There is simply no

rational basis for characterizing the seizure of this respondent’s

20

Court has maintained that in rem asset forfeitures are

merely civil for constitutional purposes.44

This case does not require the Court to reconsider

any of its precedent, but confirming that criminal

punishment has a plain meaning would be salutary.

CONCLUSION

Criminal restitution was imposed on Mr.

Ellingburg partly for reasons of retribution and

general deterrence, and the MVRA has now subjected

him to years of additional “liability, supervision, and

collateral consequences.”45 Criminal restitution is

criminal punishment. This Court should accept the

parties’ invitation to vacate the decision below.

..................................................................................

home as anything other than punishment for his crime.”); cf.

United States v. James Daniel Good Real Prop., 510 U.S. 43, 82

(1993) (Thomas, J., concurring in part and dissenting in part)

(doubting that traditional property-focused rationales can justify

the immense scope of modern in rem asset forfeitures).

Ursery, 518 U.S. at 321 (Stevens, J., concurring in the

judgment in part and dissenting in part) (“Consider how drastic

the remedy would have been if Congress in 1931 had authorized

the forfeiture of every home in which alcoholic beverages were

consumed. Under the Court’s reasoning, I fear that the label

‘civil,’ or perhaps ‘in rem,’ would have been sufficient to avoid

characterizing such forfeitures as ‘punitive’ . . . .”); One

Assortment of 89 Firearms, 465 U.S. at 363–64.

44

45 Norwood, 49 F.4th at 220.

21

........................................... Respectfully submitted,

FINES AND FEES JUSTICE

CENTER

185 W. Broadway, C-538

New York, NY 10013

June 30, 2025

Matthew P. Cavedon

Counsel of Record

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 425-7499

matt@amagi.info