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,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE

PROFESSOR JENNIFER LAURIN

IN SUPPORT OF PETITIONER

Nicholas P. Silverman

Brendan Hammond

Mahogane Reed

Counsel of Record

Steptoe LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

(202) 429-3000

mreed@steptoe.com

Counsel for Amicus Curiae

Professor Jennifer Laurin

382913

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Whether criminal restitution under the Mandatory

Victim Restitution Act is penal for purposes of the

Constitution’s Ex Post Facto Clause.

ii

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

I.

In the Years Leading Up to the MVRA’s

Enactment, Courts Widely Accepted That

Restitution Was Criminal Punishment . . . . . . . . 2

II. In the Years Preceding the Enactment

of the M VRA, Congress Was Aware

of—and Agreed With—the Well-Settled

Body of Caselaw Holding That Restitution

Is Criminal Punishment . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Bearden v. Georgia,

461 U.S. 660 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Cox v. State,

394 So. 2d 103 (Ala. Crim. App. 1981) . . . . . . . . . . . . . 5

Crandon v. United States,

494 U.S. 152 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Harris v. State,

261 Ga. 859 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hughey v. United States,

495 U.S. 411 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

In re Pellegrino,

42 B.R. 129 (Bankr. D. Conn. 1984) . . . . . . . . . . . . . . 4

Johnson v. Home State Bank,

501 U.S. 78 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Kelly v. Robinson,

479 U.S. 36 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5

Ladner v. United States,

358 U.S. 169 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Neder v. United States,

527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iv

Cited Authorities

Page

Sekhar v. United States,

570 U.S. 729 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Smith v. Doe,

538 U.S. 84 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Spielman v. State,

298 Md. 602 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Crawford,

289 Or. 151 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Duran,

224 Neb. 774 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Brown,

744 F.2d 905 (2d Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Florence,

741 F.2d 1066 (8th Cir. 1984) . . . . . . . . . . . . . . . . . . 4, 7

United States v. Keith,

754 F.2d 1388 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . 4

Constitutional Provisions

U.S. Const. amend. VII . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 7

v

Cited Authorities

Page

Statutes

11 U.S.C. § 523(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 3579(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

128 Cong. Rec. H8205 (daily ed. Sept. 30, 1982) . . . . . . . 7

Cr iminal Victims Protection Act of 199 0,

Pub. L. No. 101–581, § 3, 104 Stat. 2865 . . . . . . . . . . . 3

H.R. Rep. No. 98-1017 (1984) (“House Report”) . . . . . 6-8

Mandatory Victims Restitution Act, Pub. L. No.

104-132, 110 Stat. 1227 (1996) (“MVRA”) . . 1, 2, 4-6, 8

S. Rep. No. 97-532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Victim and Witness Protection Act, Pub. L.

No. 97–291, 96 Stat. 1248 (1982) (“VWPA”) . . 3, 4, 6-8

Other Authorities

Br i a n K lei n haus , Ser v in g Tw o Ma st ers:

Evaluating the Criminal or Civil Nature of

the VWPA and the MVRA through the Lends

of the Ex Post Facto Clause, the Abatement

Doc tr in e , an d th e Si x th Am en dm ent,

73 FORDHAM L. REV. 2711 (2005) . . . . . . . . . . . . . 6

1

INTEREST OF AMICUS CURIAE1

Professor Jennifer Laurin is the George R. Killam,

Jr. Chair of Criminal Law at the University of Texas

School of Law. Professor Laurin studies, teaches, and

writes about various topics in criminal law and criminal

procedure, including how law and institutional design

shape the functioning of criminal justice institutions. She

served as Reporter to the American Bar Association’s

Criminal Justice Standards Task Force, and as Chair of

the American Bar Association’s Texas Capital Punishment

Assessment team. As a scholar of criminal law, Professor

Laurin has a strong interest in the orderly development

of the law in this area.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Imposition of restitution in criminal sentencing is

nothing new. In the years leading up to the enactment of

the Mandatory Victims Restitution Act, 2 this Court and

lower federal courts understood that restitution ordered

in criminal cases was a form of criminal punishment.

Absent a contrary statement—and no such statement

exists here—statutes incorporate the established meaning

of common-law terms. When it passed the MVRA in 1996,

Congress was well aware of judicial interpretations of

“restitution” as criminal punishment, a fact reflected in

congressional documents. The MVRA incorporated that

1. No party’s counsel authored any part of this brief. No

person or entity, other than Professor Jennifer Laurin and her

counsel, paid for the brief’s preparation or submission.

2. Pub. L. No. 104–132, 110 Stat. 1227 (1996) (“MVRA”).

2

established, common-law interpretation of restitution.

Thus the MVRA, like its statutory predecessors, imposes

criminal punishment and therefore implicates the Ex Post

Facto Clause of the Constitution.

ARGUMENT

“It is a settled principle of interpretation that, absent

other indication, ‘Congress intends to incorporate the wellsettled meaning of the common-law terms it uses.’” Sekhar

v. United States, 570 U.S. 729, 732 (2013) (quoting Neder

v. United States, 527 U.S. 1, 23 (1999)). When Congress

enacted the MVRA, there was a well-settled judicial

understanding that criminal restitution was punishment.

Indeed, congressional documents from the years leading

up to the MVRA’s enactment show that Congress was

aware of the settled judicial understanding that restitution

imposed in criminal cases was a form of punishment.

The MVRA carried forward this understanding—the

proverbial “old soil,” 570 U.S. at 733. Because restitution

under the MVRA is a criminal punishment, it implicates

the Ex Post Facto Clause. See Smith v. Doe, 538 U.S. 84,

92 (2003) (“If the intention of the legislature was to impose

punishment, that ends the inquiry.”).

I.

In the Years Leading Up to the MVRA’s Enactment,

Courts Widely Accepted That Restitution Was

Criminal Punishment.

The MVRA was enacted against a well-settled body

of caselaw addressing the nature of restitution ordered in

criminal cases. This precedent included cases addressing

restitution under state statutes and the MVRA’s federal

3

predecessor, the Victim and Witness Protection Act, Pub.

L. No. 97–291, 96 Stat. 1248 (1982) (“VWPA”).

For example, in Hughey v. United States, 495 U.S. 411

(1990), this Court held that restitution under the VWPA is

limited to the loss caused by the offense of conviction and

does not include losses caused by other charged conduct.

495 U.S. at 413. To reach that conclusion, the Court relied

on the rule of lenity, id. at 422, which applies to statutes

that impose criminal punishment. See Crandon v. United

States, 494 U.S. 152, 168 (1990) (“[W]e are construing

a criminal statute and are therefore bound to consider

application of the rule of lenity.”); Ladner v. United States,

358 U.S. 169, 178 (1958) (“This policy of lenity means that

the Court will not interpret a federal criminal statute so as

to increase the penalty that it places on an individual. . . .”).

Similarly, when this Court decided Kelly v. Robinson,

479 U.S. 36 (1986), it understood criminal restitution

orders imposed under state law to be a form of criminal

punishment. Specifically, the Court held that 11 U.S.C.

§ 523(a)(7)—which “codifies the judicially created

exception to [bankruptcy] discharge for fines”—prevents

“the discharge of a criminal judgment that takes the

form of restitution.” Id. at 51-52. 3 The Court reached

3. The Court subsequently held that criminal restitution

orders were “debts” that were potentially dischargeable in

Chapter 13 bankruptcy proceedings, Johnson v. Home State

Bank, 501 U.S. 78, 83 n.4 (1991), an issue that Kelly expressly left

open, 479 U.S. at 50 n.12. Congress later overruled that result and

expressly made criminal restitution orders non-dischargeable

in Chapter 13 bankruptcy proceedings as part of the Criminal

Victims Protection Act of 1990, Pub. L. No. 101–581, § 3, 104 Stat.

2865. Johnson, 501 U.S. at 83 n.4.

4

the conclusion that a criminal restitution qualified as

a “fine[]” because, unlike a civil judgment, criminal

restitution “is rooted in the traditional responsibility of

a state to protect its citizens by enforcing its criminal

statutes and to rehabilitate an offender by imposing a

criminal sanction intended for that purpose.” Id. at 52

(emphasis added) (quoting In re Pellegrino, 42 B.R. 129,

133 (Bankr. D. Conn. 1984)); see also id. at 49 n.10 (“[T]he

direct relation between the harm and the punishment

gives restitution a more precise deterrent effect than a

traditional fine.”); Bearden v. Georgia, 461 U.S. 660, 668

(1983) (characterizing criminal restitution and fines alike

as “the debt [the criminal] owes to society for his crime”).

In addition, pre-MVRA cases from lower federal

appellate courts explicitly held that restitution under the

VWPA is criminal punishment. Specifically, those courts

harmonized the fact that the VWPA provides “no right to

jury trial as to the amount of restitution” with the reality

that “the Seventh Amendment would require such a trial

if the issue were decided in a civil case,” Kelly, 479 U.S.

at 53 n.14, by reasoning that criminal restitution, as a

form of punishment, was not a Seventh Amendment suit

at common law. See, e.g., United States v. Keith, 754 F.2d

1388, 1392 (9th Cir. 1985) (rejecting a Seventh Amendment

argument because “Congress made restitution under the

Act a criminal penalty”); United States v. Brown, 744

F.2d 905, 909 (2d Cir. 1984) (“So long as the restitution

provision is a permissible form of punishment, it is not

subject to civil requirements. . . . Restitution undoubtedly

serves traditional purposes of punishment.”); United

States v. Florence, 741 F.2d 1066, 1067 (8th Cir. 1984)

(“Restitution, as an aspect of criminal punishment, has a

history far older than the American system of justice or,

5

for that matter, the English legal tradition as a whole.”);

see also Kelly, 479 U.S. at 53 n.14 (“Every Federal Court

of Appeals that has considered the question has concluded

that criminal defendants contesting the assessment of

restitution orders are not entitled to the protections of

the Seventh Amendment.”).

State-court decisions from the years preceding

enactment of the MVRA likewise hold that criminal

restitution is punishment. For example, only four years

before Congress passed the MVRA, the Supreme Court

of Georgia concluded that a post-sentencing increase

in a defendant’s obligation to pay restitution violated

the Double Jeopardy Clause because “restitution is

punishment when ordered as part of a criminal sentence”

and not “a civil remedy for the victim.” Harris v. State,

261 Ga. 859, 860 (1992). Other state-court decisions agree

with that analysis. See, e.g., State v. Duran, 224 Neb. 774,

776 (1987) (concluding that “restitution pursuant to [a

state statute] is a criminal penalty imposed as punishment

for the crime, not an administrative or civil penalty”);

Spielman v. State, 298 Md. 602, 610, (1984) (“It hardly

can be contended that one who has been ordered to pay

restitution . . . has not received punishment.”); State v.

Crawford, 289 Or. 151, 153 (1980) (en banc) (applying the

rule “that a defendant is subject to no greater penalty than

that which was in effect upon the date of the commission of

the crime” to invalidate a restitution order); Cox v. State,

394 So. 2d 103, 106 (Ala. Crim. App. 1981) (same).

6

II. In the Years Preceding the Enactment of the

MVRA, Congress Was Aware of—and Agreed

With—the Well-Settled Body of Caselaw Holding

That Restitution Is Criminal Punishment.

Congressional statements about the penal nature of

the VWPA’s restitution provisions confirm that restitution

under that statute—and, therefore, under the MVRA—is

“punishment” for constitutional purposes. The Senate

Report on the VWPA stated that “[t]he principle of

restitution is an integral part of virtually every formal

system of criminal justice,” and “holds that, whatever

else the sanctioning power of society does to punish its

wrongdoers, it should also insure that the wrongdoer is

required to the degree possible to restore the victim to

his or her prior state of well-being.” S. Rep. No. 97-532,

at 30. The Senate Report also observed that the purpose

of the VWPA’s restitution mechanism was to give courts

“flexibility in determining the kind of restitution which

would both satisfy the victim and provide maximum

rehabilitative incentives to the offender.” Id. at 32. These

statements “show that Congress was aware of the punitive

past of restitution” and “had both offender punishment and

victim compensation in mind when enacting the VWPA.”

Brian Kleinhaus, Serving Two Masters: Evaluating the

Criminal or Civil Nature of the VWPA and the MVRA

through the Lends of the Ex Post Facto Clause, the

Abatement Doctrine, and the Sixth Amendment, 73

FORDHAM L. REV. 2711, 2723-24 (2005).

The House Report accompanying the Sentencing

Reform Act of 1984, which “carried for ward and

strengthened” the VWPA, characterized “restoration

of the victim” as “one of the purposes of sentencing”

in criminal cases, and “created a presumption in favor

of restitution as part of the punishment of convicted

7

defendants.” H.R. Rep. No. 98-1017, p. 78 (1984) (“House

Report”).

Further, prompted by the Seventh Amendment

litigation discussed above, House Report at 79 (citing

United States v. Florence, 741 F.2d 1066 (8th Cir. 1984)),

the House Report set out the Committee’s view that

“the restitution provisions of the Victim and Witness

Protection Act of 1982 impose a criminal penalty” such

that “[t]he seventh amendment is not applicable.” Id. at

80. The Committee based this view on “the language

and legislative history” of those provisions, which the

Committee believed “clearly and unambiguously create

a criminal penalty.” Id. Per the Committee, the text

of the VWPA characterizes restitution as a penalty by

authorizing a court to order restitution “in addition to or

in lieu of any other penalty.” Id. (quoting 18 U.S.C. 3579(a)

(1984)) (emphasis omitted). The Committee also noted that

the sponsor of the VWPA had explained that the statute

“explicitly recognizes the importance of restitution as a

criminal sanction.” Id. (quoting 128 Cong. Rec. H8205

(daily ed. Sept. 30, 1982) (remarks of Rep. Rodino)); see

also id. at 80 n.20 (explaining that “[t]he section-by-section

analysis” of the VWPA “states plainly that ‘[r]estitution

is a criminal penalty’” (citations omitted)).

Two other aspects of the VWPA’s restitution provisions

supported the Committee’s conclusion that restitution

under the Act was criminal in nature. First, the “origin”

of the VWPA’s restitution provisions “underscore[d] the

fact that they authorize a criminal penalty.” Report at 80.

The Committee explained that the VWPA’s restitution

provisions “are derived from criminal code revision

legislation that Congress” considered “for some 12

years,” and “[t]hat legislation has treated restitution as

a criminal penalty.” Id. Second, the structure and scope

8

of the VWPA’s restitution provisions “contradict[ed]

the notion that they create a civil action” rather than a

criminal penalty. Id. The Committee explained that the

type of damages that restitution can cover, the district

court’s discretion to order restitution, and the VWPA’s

interaction with civil remedies that victims may seek and

obtain in separate proceedings support the Committee’s

determination that restitution under the V WPA is

criminal in nature. Id. at 80-81.

CONCLUSION

When Congress enacted the MVRA, it incorporated

the accepted judicial understanding that restitution

ordered in criminal cases is a form of punishment.

Therefore, retroactive changes in law that enhance a

defendant’s exposure to criminal restitution, like other

laws that retroactively enhance punishment, violate the

Ex Post Facto Clause of the Constitution.

Respectfully submitted,

Nicholas P. Silverman

Brendan Hammond

Mahogane Reed

Counsel of Record

Steptoe LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

(202) 429-3000

mreed@steptoe.com

Counsel for Amicus Curiae

Professor Jennifer Laurin