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

No. 24-482

IN THE

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HOLSEY ELLINGBURG, JR.,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

On Writ of Certiorari to the

U.S. Court of Appeals for the Eighth Circuit

BRIEF OF DEBRA RICKETTS-HOLDER

AS AMICUS CURIAE

IN SUPPORT OF THE JUDGMENT BELOW

PAUL G. CASSELL

S.J. QUINNEY COLLEGE OF LAW

AT THE UNIVERSITY OF UTAH

333 South University Street

Salt Lake City, Utah 84112

BRANDON WOLF

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

ALLYSON N. HO

Counsel of Record

BRADLEY G. HUBBARD

MATT SCORCIO

BRYSTON C. GALLEGOS

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

aho@gibsondunn.com

WILLIAM S. MALMED

GIBSON, DUNN & CRUTCHER LLP

One Embarcadero Center, Suite 2600

San Francisco, California 94111

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Interest of Amicus Curiae .......................................... 1

Statement ................................................................... 3

Argument .................................................................. 11

I. From Long Before The Founding To

Today, Restitution Has Been Used To

Compensate Victims, Not Punish Offenders. ............................................................. 11

II. If The Court Disagrees That Restitution

Is Categorically Compensatory, A

Statute-Specific, Purpose-Or-Effect Analysis Is Required. ......................................... 16

Conclusion ................................................................ 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Beavers v. Henkel,

194 U.S. 73 (1904) ................................................ 12

In re Davis,

---F.4th----,

2025 WL 2184111 (9th Cir. Aug. 1, 2025) ............. 19

Hughey v. United States,

495 U.S. 411 (1990) .............................................. 13

Kansas v. Hendricks,

521 U.S. 346 (1997) ........................................ 17, 21

Kennedy v. Mendoza–Martinez,

372 U.S. 144 (1963) ........................................ 18, 20

Miller v. Alabama,

567 U.S. 460 (2012) ...................................... 2, 8, 22

Montgomery v. Louisiana,

577 U.S. 190 (2016) ...................................... 2, 8, 22

Nelson v. Colorado,

581 U.S. 128 (2017) ............................................. 14

Paroline v. United States,

572 U.S. 434 (2014) .............................................. 13

People v. Foalima,

239 Cal. App. 4th 1376 (2015) ............................. 17

People v. Neilly,

15 N.W.3d 561 (Mich. 2024) ................ 8–10, 17–21

People v. Neilly,

2022 WL 16858012 (Mich. Ct. App.

Nov. 10, 2022)................................................. 10, 17

iii

Page(s)

R.S. v. Commonwealth,

423 S.W.3d 178 (Ky. 2014)................................... 17

Smith v. Doe,

538 U.S. 84 (2003) .................................... 18, 20, 21

State v. Freeman,

848 P.2d 882 (Ariz. Ct. App. 1993) ...................... 17

State v. Lucas,

758 S.E.2d 672 (N.C. Ct. App. 2014) ................... 17

State v. McClelland,

357 P.3d 906 (Mont. 2015) ................................... 17

Syed v. Lee,

322 A.3d 578 (Md. 2024) ...................................... 12

United States v. Bach,

172 F.3d 520 (7th Cir. 1999) ................................ 14

United States v. Louper-Morris,

672 F.3d 539 (8th Cir. 2012) ................................ 15

United States v. Visinaiz,

344 F. Supp. 2d 1310 (D. Utah 2004) .................. 13

United States v. Zacks,

375 U.S. 59 (1963) .......................................... 17, 21

Constitutional Provisions

Mich. Const. art. 1, § 24 ............................................ 18

U.S. Const. art. I, § 9, cl. 3 ................ 10, 16, 17, 21, 22

Statutes

18 U.S.C. § 3664 .................................................. 14, 15

18 U.S.C. § 3771 ........................................................ 19

Crime Victims’ Rights Act,

Pub. L. 108-405, 118 Stat. 2261 (2004),

codified at 18 U.S.C. § 3771 ................................. 19

iv

Page(s)

Mandatory Victims Restitution Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1227 ...... 11, 14–17, 22

Mich. Comp. Laws § 769.1a ............................ 8, 19, 21

Mich. Comp. Laws § 780.766 .......................... 8, 19, 21

Victim and Witness Protection Act of 1982,

Pub. L. No. 97-291, 96 Stat. 1248 .................. 11, 16

Record Documents

1993 Sentencing Hr’g Tr.,

People v. Neilly, No. 1993-0756-FH

(Mich. Cir. Ct. Nov. 29, 1993) ............................ 4–7

2021 Resentencing Hr’g Tr.,

People v. Neilly, No. 1993-0756-FH

(Mich. Cir. Ct. Apr. 21, 2021).......................... 6, 7, 9

Appellant’s Appendices,

People v. Neilly, No. 165185

(Mich. Oct. 26, 2023) ...................................... 3, 5–9

Other Authorities

Black’s Law Dictionary (6th ed. 1990) ...................... 13

Charles R. Pengilly,

Restitution, Retribution, and the

Constitution,

7 Alaska L. Rev. 333 (1990) ................................. 14

Jonathan Barth,

Criminal Prosecution in American

History: Private or Public?,

67 S.D. L. Rev. 119 (2022) ................................... 12

Linda Trang,

The Taxation of Crime Victim Restitution:

An Unjust Penalty on the Victim,

35 Loy. L.A. L. Rev. 1319 (2002) ......................... 14

v

Page(s)

Model Penal Code: Sentencing

(A.L.I., 2017)......................................................... 15

Paul G. Cassell,

The Crime Victims’ Rights Movement:

Historical Foundations, Modern

Ascendancy, and Future Aspirations,

56 U. Pac. L. Rev. 387 (2025)............. 11–13, 15, 18

Randy Barnett,

Restitution: A New Paradigm

of Criminal Justice,

87 Ethics 279 (1977) ............................................ 15

Shirley S. Abrahamson,

Redefining Roles: The Victims’

Rights Movement,

1985 Utah L. Rev. 517 ......................................... 13

4 William Blackstone,

Commentaries on the Laws of

England (1769) ..................................................... 12

INTEREST OF AMICUS CURIAE*

Debra Ricketts-Holder is Christopher Ricketts’s

mother. Christopher was only 17 when he was senselessly murdered.

Debra and Christopher

*

Pursuant to Supreme Court Rule 37.6, amicus represents

that this brief wasn’t authored in whole or in part by any party

or counsel for any party. No person or party other than amicus

or her counsel made a monetary contribution to the preparation

or submission of this brief.

2

On the evening of June 10, 1993, Christopher was

sitting in his Geo Tracker listening to music when four

teenagers—who spent their evening drinking and

smoking marijuana—decided they wanted his car

stereo.

Two of the four—William Neilly, who was also 17,

and James Brown—armed themselves with pistols,

donned hooded sweatshirts, and approached Chrisopher. Sensing trouble and wanting to avoid a confrontation, Christopher tried to drive away. Neilly

and Brown both shot at Chrisopher as he fled. A bullet struck him in the back and killed him.

Five months later, a jury convicted Neilly of firstdegree murder (along with five other counts), and the

judge sentenced him to life in prison without parole,

which was the mandatory sentence. Restitution was

neither sought nor ordered.

Twenty years later, the State of Michigan had to

resentence Neilly in light of this Court’s decisions in

Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016).

The court resentenced Neilly to 35–60 years in

prison and ordered him to pay Ms. Ricketts-Holder

$14,895.78 in restitution—the cost she paid Langeland Funeral Home to bury her son. Neilly challenged

the constitutionality of the restitution order under the

Ex Post Facto Clause. The Michigan Court of Appeals

and Supreme Court rejected his arguments. His petition for a writ of certiorari is pending before this

Court. Neilly v. Michigan, No. 24-395.

Ms. Ricketts-Holder’s life has never been the

same. As she wrote to the sentencing court in March

2021:

3

Appellant’s App. 29, People v. Neilly, No. 165185 (Mich.

Oct. 26, 2023) (“Mich. S. Ct. App.”), https://t.ly/2rjh0.

Ms. Ricketts-Holder has an interest in defending

the trial court’s restitution order against an Ex Post

Facto challenge. The order isn’t punitive—it’s compensatory. It restores to her the $14,895.78 she paid

to bury her 17-year-old son 32 years ago. She also

wants to ensure that other crime victims remain eligible to receive compensatory restitution for the financial harms criminals cause.

STATEMENT

In June 1993, amicus Debra Ricketts-Holder was

traveling in California when she received a call that

changed her life forever. Her 17-year-old son, Christopher Ricketts, had been murdered back home in

Kalamazoo, Michigan, by four teens who wanted to

steal his car stereo.

After a five-hour, cross-country flight, Ms. Ricketts-Holder arrived back home in Michigan to Christopher’s lifeless body in the morgue. Devastated, she

still had to arrange for Christopher’s funeral. She ultimately spent $14,895.78 to bury her son.

4

A Michigan jury convicted William Neilly of

Christopher’s felony murder. While restitution wasn’t

ordered as part of the original sentence, later at a resentencing the trial court ordered Neilly to pay Ms.

Ricketts-Holder restitution for Christopher’s funeral

costs. Neilly now challenges that restitution as retroactive (and impermissible) criminal punishment under the Constitution’s Ex Post Facto Clause. But in

both Neilly’s murder case and the robbery case under

review, restitution serves to compensate victims, not

to punish criminals.

Of course, some losses can never be made whole.

The $14,895.78 won’t bring Christopher back to life.

It won’t take away his mother’s pain when she can

only visit Christopher’s grave instead of serving him

his favorite blueberry pie on a holiday. But Neilly’s

restitution would at least compensate Christopher’s

mother for a fraction of the tangible losses that she

suffered.

1. Christopher Ricketts was born in Kalamazoo,

Michigan, in 1975. 1993 Sentencing Hr’g Tr. 18:3–4,

People v. Neilly, No. 1993-0756-FH (Mich. Cir. Ct.

Nov. 29, 1993) (statement of Debra Ricketts-Holder).

He grew up “in the country” outside Kalamazoo, so he

wasn’t fully “aware of the hatred and the violence that

plagued the streets” in the city. Id. 19:17–19.

Christopher was “bashful,” “intelligent,” and caring—he’d “take the coat off his back and give it to

someone who did not have one.” Id. 19:6–7, 11–13.

Christopher faced challenges and losses. He was

acutely asthmatic, and an accident when he was a

young boy left him blind in one eye. Id. 20:25. But he

never let his challenges keep him down.

5

He was “an achiever” and “a scholar”—and he was

particularly good with computers. Id. 18:18, 19:2–5.

On learning that Christopher would be in her class

during the upcoming school year, one computer

teacher told Ms. Ricketts-Holder that she worried

“there was nothing [she] could teach [Christopher] because he was so far ahead.” Id. 19:2–5.

Christopher enjoyed reading and collecting comic

books and baseball cards. Id. 18:18–20. He also appreciated literature. One of the “most valued prizes

in his book collection” was the “works of William

Shakespeare.” Id. 18:21–23.

Christopher had “plans for [his] future.” Mich. S.

Ct. App. 112 (statement of Aimee Maxson). He hoped

to become a psychiatrist and to open a bookstore.

1993 Sentencing Hr’g Tr. 21:9–11. He also wanted to

give back to his community. “[H]e wanted to take a

bus load of children to Disneyland”—“that was one of

Christopher’s dreams.” Id. 21:12–15.

He wanted to “move to Georgia,” “get married” to

his girlfriend, and “have kids.” Mich. S. Ct. App. 112.

Christopher “wanted his grandma to see his kids before

she died.” Ibid. All who knew him agreed that Christopher “had so much going for him and so much to give.”

Id. 110 (statement of Patricia Evans).

In January 1993, Christopher’s grandfather died.

Ibid. So Christopher, only 17, “assumed a new role as

man of the house and taking care of his 72 year old

grandmother.” Ibid.

2. Five months later, Ms. Ricketts-Holder was

traveling with family in San Diego, California. 1993

Sentencing Hr’g Tr. 18:4–6. Christopher was back

home in Kalamazoo, sitting in his red Geo Tracker

6

listening to music. Mich. S. Ct. App. 97 (Presentence

Investigation Report); see also 2021 Resentencing Hr’g

Tr. 14:19–20, People v. Neilly, No. 1993-0756-FH (Mich.

Cir. Ct. Apr. 21, 2021) (statement of Neilly’s attorney).

3. While Christopher was enjoying the early

summer night, Neilly (also 17 years old)—who “ha[d]

been involved with drugs [and alcohol] for a long period of time”—was drinking cognac and smoking marijuana with James Brown, Angelo Burnett, and Donnie Wogoman. 1993 Sentencing Hr’g Tr. 23:1–2, 25:1–

3 (statement of the Court); 2021 Resentencing Hr’g Tr.

14:14–15.

Drunk and high, Neilly and the others “decided

that they were going to buy more marijuana.” 2021

Resentencing Hr’g Tr. 14:17–19. A fifth person—Telly

Matthews—drove them to an address near where

Christopher was parked. Ibid.

When Neilly and his confederates arrived at the

address, they noticed Christopher’s truck and heard

his music. Mich. S. Ct. App. 97. Brown said, “we

should jack [Christopher] for his sounds.” 1993 Sentencing Hr’g Tr. 23:17–18. So “on the spur of the moment” the group decided “to steal the sound system.”

Mich. S. Ct. App. 97.

Neilly was determined “to act tough” in front of

“the other boys” because he “wanted [them] to think

he was cool.” 2021 Resentencing Hr’g Tr. 14:23–24.

So Neilly—along with Brown—“volunteered” to rob

Christopher. Mich. S. Ct. App. 99.

4. Neilly grabbed his illegally purchased pistol

from the glove box. Ibid. Brown pulled out his own pistol too. Ibid. Together, they approached Christopher—

sweatshirt hoods pulled up and pistols drawn. Ibid.

7

Brown stood behind Christopher’s truck and

Neilly circled it before approaching the driver’s-side

window. Ibid.; 2021 Resentencing Hr’g Tr. 15:1–3.

Christopher looked at Neilly like he “knew he was going to be robbed.” Mich. S. Ct. App. 99.

5. Neilly and Brown “confronted” Christoper, demanding that he turn over his stereo system. Id. 98.

But the stereo couldn’t be removed because it was

“locked in with lug-proof bolts.” 1993 Sentencing Hr’g

Tr. 21:2–3. So Christopher “tried to drive away,”

Mich. S. Ct. App. 98, heeding his mother’s advice to

“leave the scene” and not “argue with people that don’t

have sense.” 1993 Sentencing Hr’g Tr. 20:16–17.

6. Neilly and Brown shot Christopher “as he was

trying to get away.” 2021 Resentencing Hr’g Tr. 24:13–

14 (statement of the Court). Both Neilly and Brown

shot at Christopher’s truck. Mich. S. Ct. App. 98. One

bullet “struck the speaker box and vehicle.” Ibid. The

other hit Christopher in the back, killing him. Ibid.

When police arrived, they found Christopher

“slumped over the wheel” of his truck, which had

crashed into a telephone pole. Id. 97. The “little red

truck” had “bullet holes through the rear tailgate” and

“canvas[ ] top” and the front seat was “stained” with

Christopher’s “blood.” Id. 110. The officers rushed

Christopher to the hospital, but it was too late. The bullet had fatally pierced his lungs, heart, and spleen. Ibid.

Ms. Ricketts-Holder “endured” an excruciating

“five-hour flight” from Los Angeles “to come home to

see [her] son’s lifeless body in the morgue.” 1993 Sentencing Hr’g Tr. 18:6–8. She “did everything [she]

could” “to make [Christopher] come back.” Id. 18:9–

10. But he was already gone.

8

Ms. Ricketts-Holder was “so distraught” in the

days following her son’s killing that she “was unable

to attend” Christopher’s visitation services. Mich. S.

Ct. App. 111.

7. Police officers arrested Neilly, Burnett, and Wogoman within hours of Christopher’s murder. Id. 98.

Brown fled to California and was arrested later. Ibid.

8. In November 1993, a jury convicted Neilly of

“first-degree felony murder, conspiracy to commit

armed robbery, and two counts of felony-firearm.”

People v. Neilly, 15 N.W.3d 561, 566 (Mich. 2024). The

trial court sentenced Neilly to life without parole, the

then-mandatory sentence for first-degree murder in

Michigan. See ibid.

The State didn’t request—and the court didn’t impose—restitution when sentencing Neilly in 1993. At

that time, Michigan had a discretionary restitution

scheme. See Mich. Comp. Laws § 780.766(2), as

amended by 1988 Mich. Pub. Act 21 (trial court “may

order” restitution); Mich. Comp. Laws § 769.1a(1), as

amended by 1985 Mich. Pub. Act 89 (same).

9. Nearly three decades later, Michigan was required to resentence Neilly in light of this Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 577 U.S. 190 (2016). See

Neilly, 15 N.W.3d at 566.

During that nearly 30-year stretch, Michigan

amended its restitution statutes to make restitution

mandatory instead of discretionary. See Mich. Comp.

Laws § 780.766(2) (courts “shall order” restitution);

Mich. Comp. Laws § 769.1a(2) (same); see also Neilly,

15 N.W.3d at 567.

9

10. Neilly was resentenced on April 21, 2021. See

generally 2021 Resentencing Hrg’ Tr. The trial court

sentenced Neilly to 35–60 years in prison. Neilly, 15

N.W.3d at 566. The court also ordered Neilly to “pay

restitution in the amount of $14,895.78 to compensate

[Ms. Ricketts-Holder] for funeral expenses.” Ibid.; see

also 2021 Resentencing Hr’g Tr. 26:20–21, 28:5–8 (ordering Neilly to pay restitution for Christopher’s “funeral expenses” and “burial expenses”).

Mich. S. Ct. App. 34.

10

11. Neilly appealed the restitution order, arguing

that it violated the Ex Post Facto Clause. See Neilly,

15 N.W.3d at 567. According to Neilly, his criminal

punishment had been increased in violation of the Ex

Post Facto Clause because restitution was ordered under Michigan’s current, mandatory restitution statutes instead of the discretionary ones that were in effect when he killed Christopher in 1993. Ibid.

The Michigan Court of Appeals and the Michigan

Supreme Court rejected Neilly’s argument.

The court of appeals held that the Ex Post Facto

Clause wasn’t triggered because restitution wasn’t penal: “the primary intention of the Legislature in enacting the restitution statute [was] to * * * compensate[e] crime victims”—not “to be a criminal

punishment.” People v. Neilly, 2022 WL 16858012, at

*3 (Mich. Ct. App. Nov. 10, 2022). The court also assessed whether Michigan’s new mandatory restitution

statute “functions as criminal punishment in application” and concluded it doesn’t. Ibid.

“Because restitution is not a penalty under the

legislative intent or in its application,” the court explained, “it cannot violate the Ex Post Facto Clause as

the application of the current version of the statute

does not increase the punishment for a crime.” Ibid.

The Michigan Supreme Court agreed, holding

“that because restitution imposed under the current

statutes does not constitute punishment, no such violation”—of the federal or state prohibitions on ex post

facto laws—“occurred here.” 15 N.W.3d at 566, 570

(“[T]he intent of the [restitution] statutes is to provide

a civil remedy for victims’ injuries rather than to provide a criminal punishment for defendants.”).

11

Neilly has petitioned for a writ of certiorari in this

Court. Pet. at i, Neilly v. Michigan, No. 24-395 (Oct.

7, 2024). The petition remains pending. In April

2025, this Court granted Ellingburg’s petition for certiorari to review whether “restitution under the Mandatory Victims Restitution Act * * * is a criminal punishment for the purposes of the Ex Post Facto clause.”

ARGUMENT

I.

FROM LONG BEFORE THE FOUNDING TO TODAY, RESTITUTION HAS BEEN USED TO COMPENSATE VICTIMS, NOT PUNISH OFFENDERS.

From antiquity to today, Anglo-American law has

understood restitution as a means to compensate

crime victims for their losses, not to punish offenders

for their crimes. This victim-centered understanding

runs from the Old Testament through the English

common law familiar to the Founders to contemporary

American statutes—including the federal Mandatory

Victims Restitution Act. Any attempt to recast restitution as a criminal penalty misunderstands both its

legal heritage and its fundamental design.1

Some of the earliest legal codes cast restitution as

a duty owed to victims. See Paul G. Cassell, The Crime

Victims’ Rights Movement: Historical Foundations,

1

Ms. Ricketts-Holder agrees with the Court-appointed amicus

(at 12–20) that Ellingburg was ordered to pay restitution under

the Victim and Witness Protection Act, not the Mandatory Victims Restitution Act. As a result, Ms. Ricketts-Holder supports

the Court-appointed amicus’s position (at 12–20) that the petition should be dismissed as improvidently granted. This amicus

brief proceeds on the assumption that the Court nevertheless

reaches the question presented and addresses restitution under

the Mandatory Victims Restitution Act.

12

Modern Ascendancy, and Future Aspirations, 56 U.

Pac. L. Rev. 387, 397 (2025). The Mosaic law in the

Book of Exodus provided for restitution from offenders

to victims. Ibid.; Exodus 22:1–14 (“Anyone who steals

must certainly make restitution”). The Twelve Tables, a codification of Roman law, provided that an offender “could avoid retribution to himself or his family

by providing compensation to the victim or the victim’s family.” Syed v. Lee, 322 A.3d 578, 588 (Md.

2024). These legal codes all pre-dated centralized

criminal justice, underscoring that restitution is

aimed at redressing private injury, not advancing

state punishment.

This victim-centered understanding of restitution

carried through to English common law. In the English system, private prosecution—that is, criminal

prosecutions pursued by private citizens, rather than

the state—was “the default position in the early modern period.” Jonathan Barth, Criminal Prosecution in

American History: Private or Public?, 67 S.D. L. Rev.

119, 122 (2022). For example, Blackstone explained

that upon a judgment of forcible entry and detainer,

“the justices shall make restitution by the sheriff of

the possession” to the dispossessed owner—relief

based on the victim’s loss, not the trespasser’s moral

blame. 4 William Blackstone, Commentaries on the

Laws of England 148 (1769). The Crown gradually

assumed a supervisory role, but even then the indictment remained “at the suit of any private prosecutor.”

Beavers v. Henkel, 194 U.S. 73, 84 (1904); see also Cassell, 56 U. Pac. L. Rev. at 398 (identifying “private

prosecution as the ‘default position’ from which American criminal justice processes arose”).

13

English settlers brought the private-prosecution

model to the American Colonies, and with it restitution’s role of compensating victims. Shirley S. Abrahamson, Redefining Roles: The Victims’ Rights Movement, 1985 Utah L. Rev. 517, 521. At the time of the

Founding, victims in the colonies routinely prosecuted

offenses and obtained restitution for their losses directly from offenders. Cassell, 56 U. Pac. L. Rev. at

399–401. Because the victim himself instituted and

advanced the proceeding, restitution was pursued and

considered as recompense, not retribution. So “restitution has historically been understood as a ‘civil’ and

not a ‘punitive’ remedy.” United States v. Visinaiz,

344 F. Supp. 2d 1310, 1324 (D. Utah 2004) (collecting

historical evidence).

Nothing in the Constitution displaced the traditional understanding of restitution as compensatory

rather than punitive. To the contrary, the Founders

“would have seen the likelihood of victim-initiated

prosecution” and expected the practice to continue.

Cassell, 56 U. Pac. L. Rev. at 404. By leaving the responsibilities of day-to-day criminal justice to the

States, the Founders “were clearly crafting a federal

constitution that envisioned state prosecutions initiated by victims.” Ibid.

Against this historical backdrop, this Court has

explained that “the ordinary meaning” of restitution

is to “restor[e] someone to a position he occupied before a particular event.” Hughey v. United States, 495

U.S. 411, 416 (1990). More recently, this Court has

recognized that the “primary goal of restitution is remedial or compensatory.” Paroline v. United States,

572 U.S. 434, 456 (2014); see also Restitution, Black’s

14

Law Dictionary (6th ed. 1990) (restitution is an “equitable remedy”).

For good reason. “Although restitution may be included in a criminal judgment,” it has “distinctive attributes” that make it “much like a civil judgment.”

Nelson v. Colorado, 581 U.S. 128, 146 (2017) (Alito, J.,

concurring in the judgment). Restitution “is an independent basis of recovery in criminal cases with a

striking resemblance to compensatory damages in tort

cases.” Linda Trang, The Taxation of Crime Victim

Restitution: An Unjust Penalty on the Victim, 35 Loy.

L.A. L. Rev. 1319, 1339 (2002); see also Charles R.

Pengilly, Restitution, Retribution, and the Constitution, 7 Alaska L. Rev. 333, 347 (1990) (“There is no

reason to view the compensation function [of victim

restitution] as anything other than a desire to approximate civil damages within the streamlined format of

sentencing.”).

So too with restitution under the Mandatory Victims Restitution Act, which is functionally like a tort

statute that “casts back to a much earlier era of Anglo–American law, when criminal and tort proceedings were not clearly distinguished.” United States v.

Bach, 172 F.3d 520, 523 (7th Cir. 1999). Consistent

with the compensatory aim of tort law, the Mandatory

Victims Restitution Act mandates full restitution for

the victim’s actual losses without regard to the defendant’s financial or other circumstances. 18 U.S.C.

§ 3664(f)(1)(A). In this way, the decision to impose

restitution turns on compensating the victim for her

injury—not on the penal goals of retribution, deterrence, or rehabilitation.

15

Further underscoring restitution’s civil character,

the Mandatory Victims Restitution Act “does not allow victims to obtain double recovery or a windfall

through restitution.” United States v. Louper-Morris,

672 F.3d 539, 566 (8th Cir. 2012). Instead, unlike

fines and penalties, the restitution a victim receives

must be reduced by any compensatory damages the

victim recovers in the future through civil litigation.

18 U.S.C. § 3664(j)(2)(A) (“Any amount paid to a victim under an order of restitution shall be reduced by

any amount later recovered as compensatory damages

for the same loss by the victim in—(A) any Federal

civil proceeding”). Indeed, the Mandatory Victims

Restitution Act is codified in chapter 232 (“Miscellaneous Sentencing Provisions”) of Title 18, which is

separate from the chapters that address imprisonment and fines.

If restitution were punitive, the victim’s injury or

her total recovery wouldn’t matter. But “[r]estitution

recognizes rights in the victim, and this is a principal

source of its strength.” Randy Barnett, Restitution: A

New Paradigm of Criminal Justice, 87 Ethics 279, 291

(1977).2

The Court should affirm that, as a matter of history and tradition, restitution remains what it has always been—a non-punitive remedy that compensates

crime victims. As a result, statutes that provide for

2

The American Law Institute’s 2017 Model Penal Code: Sentencing also recognizes the fundamentally compensatory nature

of restitution: “The primary purpose of victim restitution as a

criminal sanction is to compensate crime victims,” who “have a

strong moral claim to restitution from those who brought about

their injuries.” Model Penal Code: Sentencing § 6.07 cmt. e (emphases added); see also Cassell, 56 U. Pac. L. Rev. at 499.

16

restitution—like the Mandatory Victims Restitution

Act and the Michigan statute at issue in Neilly—are

categorically compensatory and therefore not subject

to the Ex Post Facto Clause.

II. IF THE COURT DISAGREES THAT RESTITUTION IS CATEGORICALLY COMPENSATORY, A

STATUTE-SPECIFIC, PURPOSE-OR-EFFECT

ANALYSIS IS REQUIRED.

History and tradition confirm that restitution is

categorically compensatory and therefore analogous

to a civil remedy that doesn’t implicate the Ex Post

Facto Clause—even when imposed in a criminal proceeding or as part of a criminal sentence. That should

begin and end the analysis—in this case, in Neilly,

and in other similar restitution cases—and requires

affirmance.

But if the Court declines to adopt the categorical

approach that history and tradition require, then the

Court must undertake an individualized purpose-oreffect analysis that focuses on the particular statute

under which restitution was imposed to determine

whether the Ex Post Facto Clause applies.3 Ms. Ricketts-Holder agrees with the Court-appointed amicus

(at 20–51) that, should the Court reach the issue, the

purpose-or-effect analysis compels the conclusion that

Congress didn’t clearly intend for the Mandatory Victims Restitution Act to be punitive, and that the statute isn’t punitive in either purpose or effect. That

3

The statute-specific nature of this analysis confirms that Ellingburg’s petition should be dismissed as improvidently

granted. As the Court-appointed amicus explains (at 12–20), restitution in this case was ordered under the Victim and Witness

Protection Act—not the Mandatory Victims Restitution Act.

17

conclusion is further confirmed by the analysis undertaken by the Michigan courts in Neilly.

Numerous States—including Michigan in the

Neilly case—have held that the “restitution imposed”

under their respective statutes “does not constitute

punishment” that could be subject to the Ex Post

Facto Clause. 15 N.W.3d at 566; Neilly, 2022 WL

16858012, at *3; accord State v. McClelland, 357 P.3d

906, 909 (Mont. 2015); R.S. v. Commonwealth, 423

S.W.3d 178, 188 (Ky. 2014); People v. Foalima, 239

Cal. App. 4th 1376, 1398 (2015); State v. Lucas, 758

S.E.2d 672, 680 (N.C. Ct. App. 2014); State v. Freeman, 848 P.2d 882, 885 (Ariz. Ct. App. 1993).

Under the purpose-or-effect approach, the “categorization of a particular pro[vision] as civil or criminal” for Ex Post Facto Clause purposes “is first of all

a question of statutory construction.” Kansas v. Hendricks, 521 U.S. 346, 361 (1997). “[A]ll questions of

statutory construction” are “to be judged on a case-bycase basis.” United States v. Zacks, 375 U.S. 59, 66

n.8 (1963).

As a result, any decision in this case reached under a purpose-or-effect test as applied to the Mandatory Victims Restitution Act will “have limited significance for the retroactive application of [other]

restitution statutes.” U.S. BIO 12 n.3. An analysis of

the Michigan statute at issue in Neilly confirms that

the Mandatory Victims Restitution Act doesn’t implicate the Ex Post Facto Clause either, but it also underscores that at the very least, a one-size-fits-all result can’t follow from the purpose-or-effect analysis.

18

Under the two-prong, purpose-or-effect approach,

courts must first analyze whether the legislature that

enacted the statute at issue “intended” the authorization of restitution “to punish.” See Smith v. Doe, 538

U.S. 84, 92–93 (2003). Next, courts must use the

“seven factors noted in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69 (1963),” to analyze the

purpose and effect of the particular statutory restitution scheme at issue. Smith, 538 U.S. at 97 (identifying the “factors most relevant to” the Ex Post Facto

analysis).

In Neilly, the Michigan Supreme Court began its

analysis by noting that the Michigan Constitution expressly enumerates a crime victim’s right to restitution and authorizes the legislature to enact statutes

“for the enforcement” of that right. 15 N.W.3d at 567

(quoting Mich. Const. art. 1, § 24). That constitutional

provision was adopted in 1988, after being approved

by more than 80 percent of Michigan voters. See Cassell, 56 U. Pac. L. Rev. at 454. Michigan was the first

of many States to amend its constitution to enshrine

victims’ rights throughout the criminal-justice process, including “[t]he right to restitution.” Ibid. (emphasis added).

Like dozens of other state constitutional amendments, Michigan’s victims’ rights provision wasn’t focused on punitive crime-control objectives, but on

providing and protecting victims’ procedural rights

throughout the criminal-justice process. Id. at 436–

37, 454, 495 n.830 (restitution in state and federal

19

criminal-justice systems serves remedial, rather than

punitive, purposes).4

The Michigan Supreme Court then discussed the

long-standing practice of using restitution to compensate victims before determining that “the focus of the

current restitution statutes remains on the victims’

losses rather than on further punishment of the defendant.” 15 N.W.3d at 570. In reaching that conclusion, the court explained that restitution under these

statutes was “tailored to the harm suffered by the victim rather than the defendant’s conviction or judgment of sentence.” Ibid.

After detailing the various potential statutory

measures of restitution, all of which are “tied to definable, specific costs and losses suffered by the victims

of a defendant’s crimes,” the court concluded that “the

intent of the statutes is to provide a civil remedy for

victims’ injuries rather than to provide a criminal

punishment for defendants” because “the amount of

restitution is not dependent on the severity of the

crime.” Ibid. (citing Mich. Comp. Laws §§ 780.766,

769.1a).

Having concluded “that the Legislature intended

the statutes to create a civil remedy”—because the

Legislature’s goal “was to compensate victims for the

4

In 2004, Congress enacted the Crime Victims’ Rights Act,

which expressly codified the rights of victims of federal crimes—

including the “right to full and timely restitution.” Crime Victims’ Rights Act § 102, Pub. L. 108-405, 118 Stat. 2261, 2261–64

(2004), codified at 18 U.S.C. § 3771(a)(6); see also In re Davis, --F.4th----, 2025 WL 2184111, at *9 (9th Cir. Aug. 1, 2025) (Crime

Victims’ Rights Act “permits crime victims * * * to file motions

asserting their rights” to restitution “after prosecution has

ended”) (emphasis added).

20

actual costs of their suffering”—the Michigan Supreme Court next used the seven Mendoza–Martinez

factors to determine whether the statutes were nevertheless “punitive either in purpose or effect.” Id. at

572.

Several of these factors remain consistent across

all restitution regimes. Restitution’s “history and tradition” as an equitable, compensatory, and remedial

measure doesn’t change across statutes. Id. at 572–

73; see Smith, 538 U.S. at 97 (“A historical survey can

be useful because a State that decides to punish an

individual is likely to select a means deemed punitive

in our tradition”); see also Part I.

The same goes for restitution’s rational connection to a nonpunitive purpose, which this Court has

described as the most significant factor, and whether

restitution promotes the traditional aims of punishment. See Smith, 538 U.S. at 102. Although restitution is an additional, negative consequence, it’s unlikely to have a substantial deterrent effect in light of

the other significant consequences of criminal punishment—and in all events restitution’s focus is on alleviating the victim’s harm, not punishing the defendant’s offense. 15 N.W.3d at 574–75.

The last two factors—whether restitution imposes

an “affirmative disability or restraint” or is “excessive

with respect” to its nonpunitive purpose—may differ

across restitution regimes. See Smith, 538 U.S. at 97,

102. In Michigan, these two factors don’t demonstrate

either a punitive purpose or effect.

While Michigan’s restitution statutes involve an

affirmative disability or restraint, the indirect nature

of that disability or restraint and the statutory

21

protections for defendants minimize the resulting punitive effect. 15 N.W.3d at 573–74; see Smith, 538

U.S. at 99–100. Failure to pay restitution subjects

Michigan defendants to revocation of parole or probation. Mich. Comp. Laws § 780.766(11). But statutory

protections limit the circumstances in which such consequences can result. Among these protections, Michigan courts can only imprison a defendant for failing

to pay if the defendant made no “good faith effort to

comply with the order.” 15 N.W.3d at 573 (quoting

Mich. Comp. Laws §§ 769.1a(11), 780.766(11)). That’s

true even though Michigan’s statutes “no longer require[ ]” courts to “consider the defendant’s ability to

pay when determining the restitution amount” in the

first place. Id. at 576.

Nor is restitution in Michigan “excessive” or beyond what’s needed to accomplish its nonpunitive purposes. Id. at 575; see Smith, 538 U.S. at 102. The

“amount of restitution is linked to the amount of provable damages suffered” by victims. 15 N.W.3d at 575

(citing Mich. Comp. Laws §§ 780.766(1), (3)–(8),

769.1a(1)(b), (3)–(8)).

In sum, as an analysis of Michigan’s mandatory

restitution regime makes clear, a statutory-schemeby-statutory-scheme analysis is required to determine

the “purpose or effect” of a statute authorizing restitution for purposes of the Ex Post Facto Clause.

That’s because seemingly minor differences across

statutory schemes—such as whether a victim’s right

to restitution has been recognized or the circumstances under which probation or parole may be revoked—might have constitutional significance. See

Hendricks, 521 U.S. at 361; Zacks, 375 U.S. at 66 n.8.

22

As a result, concluding that restitution under the

federal Mandatory Victims Restitution Act is punishment for Ex Post Facto purposes wouldn’t—indeed,

couldn’t—settle the same question as to a different

victim restitution statute like Michigan’s.

*

*

*

Debra Ricketts-Holder’s son was murdered in cold

blood in 1993. His murderer was sentenced to life

without parole. When the murderer was resentenced

thirty years later, as required by Miller and Montgomery, Michigan sought restitution to reimburse Ms.

Ricketts-Holder for what she paid to bury her 17-yearold son—a cost no mother should have to bear.

The order that Neilly make restitution to Ms.

Ricketts-Holder, like the restitution order in this case,

doesn’t violate the Ex Post Facto Clause because, under a categorical approach that considers our history

and tradition, restitution is and always has been fundamentally compensatory.

A purpose-or-effect analysis of each statute at issue reaches the same result. In all events, analyzing

the Mandatory Victims Restitution Act under that approach wouldn’t dictate the result for different statutory schemes like the one in Neilly.

CONCLUSION

For these reasons, the petition should be dismissed

as improvidently granted or, in the alternative, the

judgment of the Eighth Circuit should be affirmed.

23

Respectfully submitted.

†

ALLYSON N. HO

Counsel of Record

BRADLEY G. HUBBARD

MATT SCORCIO

BRYSTON C. GALLEGOS

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

BRANDON WOLF

GIBSON, DUNN & CRUTCHER LLP Dallas, Texas 75201

(214) 698-3100

1700 M Street, N.W.

aho@gibsondunn.com

Washington, D.C. 20036

PAUL G. CASSELL

S.J. QUINNEY COLLEGE OF LAW

AT THE UNIVERSITY OF UTAH

333 South University Street

Salt Lake City, Utah 84112

WILLIAM S. MALMED

GIBSON, DUNN & CRUTCHER LLP

One Embarcadero Center

Suite 2600

San Francisco, California 94111

Counsel for Amicus Curiae

August 29, 2025

†

Institutional information provided only for identification

purposes; does not imply institutional endorsement.