607 U.S. 163 (2026)
Federal criminal restitution is punishment for Ex Post Facto purposes — the Court’s first major application of the Smith v. Doe test in years.
Good law. Still followed. Later cases may have narrowed it — see Scope. Binds every court in the country on the federal question it decides.
Holsey Ellingburg committed his crime before the Mandatory Victims Restitution Act took effect in April 1996 and was sentenced later that year to pay restitution under it. The Eighth Circuit held that MVRA restitution is not criminal punishment, so applying it retroactively was allowed. The United States agreed with Ellingburg, so the Court appointed an outside lawyer to defend the ruling below.
Unanimously, the Court held that MVRA restitution is “plainly criminal punishment” for Ex Post Facto purposes. Applying the first step of Smith v. Doe, it looked to what Congress wrote: the Act calls restitution a penalty, imposes it only on convicted defendants at sentencing, makes the government the adverse party, and places it in the criminal code. Justice Thomas, joined by Justice Gorsuch, wrote separately to urge a broader, historical understanding of punishment.
Ellingburg is not a registry case, but it is the Court’s most recent word on how to tell a civil law from a punishment — the exact question behind every retroactivity challenge to registration. Advocates cite it for the weight it gives a statute’s text and structure; the concurrence goes further and questions the civil-label approach itself.
The Court did not decide whether Ellingburg’s restitution order actually violates the Ex Post Facto Clause; that went back to the Eighth Circuit. It said nothing directly about registration, and noted that a restitution statute is not necessarily criminal in every case.
Last verified against the sources above on September 30, 2026.
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