On January 20, 2026, in Ellingburg v. United States, 607 U.S. ____ (2026), the Supreme Court considered whether the Ex Post Facto Clause applies to the Mandatory Victim Restitution Act (MVRA), the statutory basis for most orders of restitution in federal criminal cases. That determination turned on whether restitution was a criminal penalty. If restitution was a criminal penalty, the Ex Post Facto Clause applied; if restitution was solely a civil remedy, the Ex Post Facto Clause was not implicated.
The Court held that restitution was “plainly criminal punishment” rather than solely a form of civil compensation for victims. As such, the Ex Post Facto Clause applied. While the Court’s holding was tailored to the narrow question presented in the case, its broader reasoning may set the stage for new sentencing arguments over whether a judge can impose restitution without specific findings by a jury.
Background
Holsey Ellingburg was convicted of bank robbery in 1996. Under the law in place when Ellingburg was convicted, the period to collect restitution had elapsed by the time he was released from prison. But after Ellingburg’s conviction, Congress adopted the MVRA, which, among other things, extended the permitted collection period. The government later sought to collect the restitution from Ellingburg under the MVRA. He objected on ex post facto grounds because he committed his crime before enactment of the MVRA.
The district court and Eighth Circuit rejected his claim, concluding that restitution under the MVRA was not a criminal punishment and therefore not subject to the Ex Post Facto Clause.
The Supreme Court reverses
On appeal, the Supreme Court reversed. In a short, unanimous opinion, the Court concluded that Congress intended for restitution to be a criminal penalty and thus the Ex Post Facto Clause applies. It based that finding on several factors, including that the MVRA explicitly refers to restitution as a “penalty,” restitution is imposed with other forms of criminal punishment such as imprisonment and fines, and the statute is codified in Title 18, which is titled “Crimes and Criminal Procedure.” Applying these findings to the facts, the Court found that Ellingburg could not be ordered to pay restitution after being released from prison because he was convicted before the MVRA was enacted.
Concurrence: Ex Post Facto Clause applies more broadly
In a concurring opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, questioned the Court’s precedent related to the Ex Post Facto Clause and suggested that it focused too heavily on whether Congress labeled a law “civil” or “criminal.” In their view, the Court should return to an earlier understanding that the Ex Post Facto Clause applied “to any coercive penalty for a public wrong.” Under this view, the Ex Post Facto Clause would apply more broadly, including to many regulatory statutes that are nominally “civil.”
Apprendi and the potential broader effect of Ellingburg
The Supreme Court’s short opinion did not address issues beyond whether restitution constitutes a criminal penalty. But Ellingburg’s greatest significance may be as a foundation for future arguments about whether its reasoning requires that restitution be determined by a jury rather than by a judge at sentencing.
This is not a new issue. In the seminal case, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that, other than a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi laid the groundwork for the Supreme Court’s later decisions that, using similar reasoning, struck down aspects of state-law sentencing guidelines (Blakely v. Washington) and the then-mandatory federal sentencing guidelines (United States v. Booker). In both, the Court held that the then-guidelines had allowed a judge to find facts that increased a defendant’s sentencing range, in violation of the Sixth Amendment.
What is a “statutory maximum?”
One key to the Apprendi analysis was what constituted a statutory maximum. The Supreme Court addressed that issue in Blakely v. Washington, 542 U.S. 296 (2004), which analyzed Washington state’s sentencing guidelines. The Court found that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (emphasis in original). In other words, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” For that reason, even though the sentence in Blakely did not exceed the maximum prescribed for that class of felonies under state law, it still ran afoul of Apprendi — and therefore the Sixth Amendment — because it exceeded what the judge otherwise could have imposed under the guidelines without additional findings.
Restitution’s statutory maximum
Even before Ellingburg, several courts of appeal had addressed whether Apprendi applied to restitution. Some, like the Eighth Circuit in the decision below in Ellingburg, 113 F.4th 839 (8th Cir. 2024), and the Tenth Circuit in United States v. Visinaiz, 428 F.3d 1300 (10th Cir. 2005), concluded that restitution was not a criminal penalty and therefore Apprendi did not apply. Those decisions are no longer good law after the Supreme Court’s holding in Ellingburg.
But many lower courts found that restitution was a criminal penalty, just as Ellingburg later concluded, yet still found that Apprendi did not apply because there was no “statutory maximum” for restitution. Indeed, that appears to be the majority view with such holdings in the Third, Fifth, Sixth, Seventh, and Eleventh circuits.
(Not so) settled issue
Despite the consistent holdings from the lower courts, there are signs that the issue may be far from settled. First, many of the decisions to date have provided only passing analysis as to whether Apprendi applies to restitution. And others have failed to wrestle with the specific definition of “statutory maximum” from Blakely.
For example, 20 years ago this month, the Third Circuit held in United States v. Leahy, 438 F.3d 328 (2006), that Apprendi did not apply because the MVRA had no statutory maximum. In dissent from that en banc opinion, Judge Theordore McKee, joined by four others, criticized what he believed to be the majority’s superficial analysis and failure to adhere to Blakely’s definition of a statutory maximum. In the dissent’s view, restitution in any amount greater than zero “clearly increases the punishment that could otherwise be imposed” without a jury finding.
That is a similar view to the one expressed in 2019 by Justice Gorsuch. For example, in dissent from a denial of certiorari in Hester v. United States, 586 U.S. 1104 (2019),Justice Gorsuch stated that the “statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would follow that a jury must find any facts necessary to support a (nonzero) restitution order” (emphasis in original).
Clues at oral argument
That same point arose at oral argument in Ellingburg. Because both the United States and the defendant agreed that restitution was a criminal penalty, the Court appointed amicus to argue as the respondent. Amicus-respondent urged the Court to find restitution was not a criminal penalty because of the Apprendi concerns, noting that the Court had already extended that analysis to criminal fines in an earlier case, Southern Union Co. v. United States, 567 U.S. 343 (2012). He further commented that, while the immediate issue in Ellingburg — a crime committed before 1996 in which the government attempted to collect restitution under the later-enacted MVRA — was not likely to occur again, the “jury trial question [from Apprendi] could destroy the whole regime.” Later in the argument, Justice Gorsuch observed that the government itself had conceded that restitution was a criminal penalty. Noting the Apprendi concerns that followed that decision, Justice Gorsuch ruefully asked, “The government’s made its bed. Why shouldn’t we let them lie in it…?”
Conclusion
It is not clear that Ellingburg will have any lasting effect. As observed, the narrow opinion addressed an issue not likely to occur again. But the broader Apprendi issues may still be in play. Based on Justice Gorsuch’s expressed views, the extension of Apprendi to criminal fines in Southern Union, and the less-than-rigorous earlier analysis by some courts, the issue could be ripe for new litigation and a future decision at the Court. And if the Court were to address directly whether Apprendi applies to restitution in a subsequent case, it could have a profound effect on federal criminal practice, not just for sentencing but how cases are charged and presented at trial.
