WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Ellingburg v. United States, a case in which the Court is considering whether the Ex Post Facto Clause applies to restitution ordered under the Mandatory Victims Restitution Act (MVRA), Constitutional Accountability Center Senior Appellate Counsel Smita Ghosh issued the following reaction:

The MVRA requires courts to order restitution to victims as part of their criminal sentences. The U.S. government agreed with Petitioner Holsey Ellingburg, Jr., that this restitution is a criminal penalty and the Constitution’s Ex Post Facto Clause should prevent it from being applied retroactively. And for good reason: As our amicus brief in this case explained, when Congress enacted the MVRA, it drew on a tradition of using restitution as a form of criminal punishment that extends as far back as Hammurabi’s Code.

Many Justices echoed our brief’s conclusions, noting that the MVRA uses restitution to punish offenders and imposes a criminal penalty. Justice Kagan noted—admittedly when poking fun at the government’s efforts to avoid a position that implicated other issues—that the government had pointed to “forty-two different ways” that Congress indicated that restitution was punitive. Justice Jackson summarized that “Congress made pretty clear that this was not just about compensating the victims,” but instead punishing wrongdoers. And when questioning the lawyer supporting the decision below, Justice Gorsuch interjected to explain that some of the arguments against Mr. Ellingburg’s position could still reflect a legislative consensus that “for sure this is punishment.”

The text and structure of the MVRA all reflect Congress’s plan to draw on the history of criminal restitution and institute a penalty to which the Ex Post Facto Clause should apply. The Court should recognize that in this case.