The U.S. Supreme Court on April 7 agreed to hear the appeal of a former prisoner who claims he was unconstitutionally punished when his restitution payments were extended.
The Constitution’s ex post facto clause forbids laws that retroactively enhance punishment for a crime after it was committed.
He was convicted by a federal jury and in November 1996 was sentenced to 322 months—or almost 27 years—in prison. He was ordered to pay $7,567.25 in restitution. While behind bars, he made 36 payments for a total of $2,054.04 until the VWPA-stipulated 20-year restitution period that began at the time of conviction ran out in 2016, the petition said.
Ellingburg stated in the petition that, since 20 years had passed since his sentencing, he was no longer responsible for restitution payments under the VWPA.
Despite the passage of 20 years, the Bureau of Prisons continued taking funds from Ellingburg’s prison account. The bureau took the position that the Mandatory Victim Restitution Act (MVRA), which was enacted after the sentencing, was relevant to this case. That statute provides that a defendant is liable for restitution and interest payments for 20 years following a conviction or 20 years after release from prison, whichever is later, the petition said.
In June 2022, he was released from prison and moved to Missouri. The government continued trying to collect restitution payments and charging interest. Currently, the government “claims that petitioner still owes $13,476.01 in restitution—almost double the amount of restitution he was originally ordered to pay and well more than double the amount outstanding when the twenty-year liability period expired in 2016,” the petition said.
In March 2023, Ellingburg moved to the federal district court in Missouri for an order to halt the restitution payments, arguing his liability for restitution under the VWPA lapsed in November 2016 and that applying the extended liability period under the MVRA would violate the ex post facto clause, the petition said.
The court rejected the motion, siding with several federal courts of appeals that have ruled that retroactively imposing extended liability under the MVRA did not constitute an increase in a defendant’s punishment.
The U.S. Court of Appeals for the Eighth Circuit upheld the district court’s ruling in August 2024, saying its own circuit’s precedent required it to find that criminal restitution was a civil—as opposed to a criminal—remedy and that the ex post facto clause therefore did not apply. Two of the Eighth Circuit judges wrote a concurrence noting that the circuit’s position conflicted with the Supreme Court’s ruling in Paroline v. United States (2014), the petition said.
Ellingburg urged the Supreme Court to take up the case to resolve a split among the federal courts of appeals over “whether criminal restitution ordered as a part of a defendant’s sentence under the MVRA is penal for Ex Post Facto Clause purposes.”
Deputy U.S. Solicitor General Curtis Gannon had urged the Supreme Court not to hear the case.
The circuit previously found in United States v. Carruth (2005) that “because restitution under the MVRA ‘is designed to make victims whole, not to punish perpetrators, ... it is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality,’” he wrote.
The Supreme Court is expected to hear the case in its new term beginning in October.
