Holsey Ellingburg, Jr. v. United States, USSC No. 24-557, certiorari granted 4/7/25
SCOTUS added to its 2025-26 docket on April 7, when it granted the petitioner’s cert. petition to address the following:
Whether criminal restitution under the Mandatory Victim Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause.
Decision below: United States v. Holsey Ellingburg, Jr., No. 23-3129 (8th Cir. Aug. 23, 2024).
Scotusblog page (including links to briefs and commentary)
Ellingburg was sentenced to nearly 27 years in prison and ordered to pay restitution for his role in a bank robbery in Georgia. Under the federal laws in effect when he committed the crime, he was required to make his restitution payments for 20 years, until 2016. However, Congress enacted a new law in 1996 that extends defendants liability until the later of two dates: 20 years after the judgment is entered against them or when they are released from prison. The government continued to try to collect restitution from Ellingburg after 2016, including after he was released from prison.
Ellingburg filed a motion to show cause in the district court, arguing that he should not have had to pay restitution after November 2016, and that the 1996 law violated the Constitution. The Constitutions ex post facto clause prohibits laws that retroactively increase the punishment for a crime or criminalize conduct that was legal when it occurred. The 8th Circuit rejected Ellingburg’s argument, ruling that restitution is a civil remedy.
In Wisconsin, restitution is not a civil remedy. SCOW explained in State v. Muth, 2020 WI 65, ¶26, 392 Wis. 2d 578, 945 N.W.2d 645, that “restitution is a part of our criminal justice system.” Indeed, SCOW previously noted that “[a] restitution hearing in a criminal proceeding is part of the criminal sentencing process, and serves the goals of the criminal justice system.” Id. (quoting State v. Sweat, 208 Wis. 2d 409, 422, 561 N.W.2d 695 (1997)). Further, restitution is located in Wis. Stat. ch. 973, “Sentencing.” Restitution is a sanction for criminal conduct. Muth, 92 Wis. 2d 578, ¶26.
Some years back, the court of appeals held that a guilty plea colloquy need not advise the defendant that restitution would be ordered, on the idea that restitution isn’t “potential punishment.” State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995). Assuming that this precedent remains intact — something I wouldn’t know — I wonder if a favorable result in Ellinburg would unsettle it. That is, if restitution is penal for ex post facto purposes, wouldn’t it necessarily be potential punishment for purposes of a knowing and voluntary guilty plea?
Unfortunately, it takes more to invoke ex post facto than just saying a provision is part of the criminal code. When the DNA surcharge was amended to make it more onerous (applying it to each count rather than a single surcharge for the case), ex post facto did not protect defendants who offended before the change but were sentenced after the change. State v. Williams, 2018 WI 59, 381 Wis.2d 661, 912 N.W.2d 373, overruling State v. Radaj, 2015 WI App 50, 363 Wis.2d 633, 866 N.W.2d 758. A provision must be “punitive” to invoke ex post facto. Is restitution “punitive?” We’ll see what SCOTUS says.