Court to consider the nature of restitution

In Ellingburg v United States, to be argued on Oct. 14, the justices will consider whether the ex post facto clause of the Constitution applies to the Mandatory Victims Restitution Act, which entitles victims to restitution for certain offenses. If it does, Holsey Ellingburg is not obligated to pay any more restitution than the law required at the time he committed his crime (robbing a bank). If it does not, more onerous revisions to the federal restitution statute apply, increasing his obligations to his victims.

The Constitution provides in Article I, Section 9, that “No … ex post facto law shall be passed.” In other words, the Constitution prevents one from being punished for conduct that was legal when committed. The courts traditionally have held that the clause applies only to criminal punishments and does not apply to civil remedies. The question before the justices is whether restitution, imposed under 1996’s federal Mandatory Victims Restitution Act as part of a defendant’s criminal sentence, counts as criminal for purposes of the Constitution.

Ellingburg points to numerous aspects of the statutory framework that make his restitution obligation look criminal. Most obviously, it is imposed as part of the criminal sentence: the amount of the restitution is set by the trial judge, at the end of the criminal trial, as part of the sentence that the judge imposes on a convicted defendant. For another thing, the statute uses criminal procedures to govern restitution. Although the purpose of the restitution might be to compensate the victims of the crime (the bank that Ellingburg robbed), the victim has little role in the process (unlike in civil cases). Among other things, the victim cannot initiate a proceeding seeking restitution and can neither veto a suggested restitution award nor settle the appropriate amount of the award with the defendant.

Ellingburg argues that the sanctions for failing to pay restitution also are relevant – the defendant who fails to comply with a restitution order is summarily incarcerated, a penalty not available for any failure to comply with a judgment in litigation between the defendant and the victim.

Finally, the MVRA itself describes restitution as serving the “punitive purposes” of punishment, and that the Supreme Court in its previous encounters with criminal restitution has described it as a “‘criminal sanction’ that furthers ‘penal goals.’”

The result in the case seems largely foreordained, because even the government agrees that restitution under the MVRA is criminal for purposes of the ex post facto clause. The arguments in support of the decision below come from a court-appointed amicus, or “friend of the court” – a lawyer appointed to defend the criminal sentence that the government itself will not defend. That lawyer argues primarily that the evidence that Congress considered the restitution awards to be criminal is insufficiently conclusive to justify reversal.

My guess is that a majority of the justices are not going to uphold an enhancement of Ellingburg’s sentence that the federal government declines to defend. Some of them often grumble about the lack of zeal when the government takes that position, but in the end they always (in my experience at least) end up accepting the government’s concession.