In 1996, a jury convicted Holsey Ellingburg of robbing a bank. In addition to sentencing Mr. Ellingburg to nearly 27 years in prison, the judge ordered him to pay $7,567.25 in restitution. Even though Mr. Ellingburg made multiple payments on his restitution while in prison, by the time he was released, he owed $13,476.01—almost double the original restitution amount, due to the accumulation of interest. Under the terms of the law in effect at the time of the bank robbery, the restitution order should have expired 20 years after his sentencing. But the government is still attempting to collect payments from him, nearly 30 years after his trial concluded. According to the Government, it can enforce the restitution order for 17 more years—until 2042—because Congress—after Mr. Ellingburg’s crime occurred—changed the law to extend the term of liability for restitution payments.

The Constitution’s Ex Post Facto Clause, which prohibits Congress from retroactively making the punishment for a crime more severe, clearly prohibits the retroactive application of this new law to Mr. Ellingburg. Yet the lower court held that this fundamental constitutional protection does not apply here because, in its view, the new restitution law that Congress passed after the bank robbery—the Mandatory Victims Restitution Act (MVRA)—is not criminal, making the Ex Post Facto Clause inapplicable. The Constitutional Accountability Center filed an amicus brief explaining that the Ex Post Facto Clause applies here.

Restitution has been used as a criminal punishment for thousands of years. The earliest legal codes, from Hammurabi’s Code to the Saxon laws predating the Norman invasion of England, used restitution to prevent and punish crime and to deter violators from future wrongdoing. Throughout much of English legal history, there was no sharp distinction between criminal and civil law, but in 1529, after criminal and civil law began to diverge in the 1500s, Henry VIII reaffirmed restitution’s availability as an important criminal sanction. Building on this history, the American colonies, followed by the American states and federal government, also used restitution as a criminal punishment. When Congress passed the federal government’s first comprehensive criminal restitution law in the 1980s, it drew on restitution’s history as a penological tool for deterrence and rehabilitation. Congress returned to those goals when it passed the MVRA.

Unsurprisingly, the text and structure of the MVRA both reflect Congress’s intent to draw on this history and use restitution to punish and rehabilitate defendants and deter future potential offenders—in other words, to use it as a criminal penalty. The law refers repeatedly to restitution as a “penalty,” imposes restitution as an alternative or addition to other criminal punishments, applies the same procedures to “restitution” as to criminal fines, and makes the Federal Rules of Criminal Procedure “the only rules applicable” in restitution proceedings. Similarly, the MVRA’s structure treats restitution as a criminal punishment: restitution is located in the criminal code; failure to pay it can lead to incarceration; and the law prioritizes punishing the wrongdoer over compensating the victim at every turn.

When the government uses restitution as a punishment for crime, applying that punishment or its terms retroactively does exactly what the Ex Post Facto Clause prohibits: it increases the punishment for a crime after the crime has already been committed.