The prosecution calls Ellingburg v. United States a case of “diminishing significance.”  Yet its outcome could quietly upend current restitution practice.  The upcoming Supreme Court argument asks whether restitution under the MVRA constitutes criminal punishment.   LSW examines the hidden constitutional stakes behind what appears to be a narrow sentencing dispute: a ruling in the affirmative could pull restitution into the orbit of Apprendi and its Sixth Amendment protections.

By Jillian Berman, Cindy Kuang, and Nkiru Anyaegbunam*

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Restitution has become a defining feature of the American criminal justice system.[1]  Between 1996 and 2016, unpaid obligations ballooned from less than $6 billion to more than $110 billion.[2] In 2024 alone, federal courts ordered $13.5 billion in restitution against individual defendants—the highest annual total in over twenty years.[3]  This remarkable growth stems from two statutes: the Victim and Witness Protection Act of 1982 (“VWPA”),[4] which allowed federal judges to order restitution for criminal defendants on a discretionary basis, and the Mandatory Victim Restitution Act of 1996 (“MVRA”),[5] which made restitution mandatory for certain offenses and extended liability periods.  Together, these statutes have expanded restitution from a “comparatively rare” sentencing measure to an established feature of criminal judgments.[6]

This expansion has also raised difficult constitutional questions.  One comes before the Supreme Court this Term in Ellingburg v. United States, scheduled for argument on October 14.  The Court will decide whether restitution under the MVRA is punishment for purposes of the Ex Post Facto Clause.

The answer may matter little to Ellingburg himself—few defendants today face retroactive application of the MVRA[7]—but the ruling could still have sweeping consequences.  If restitution is deemed punitive, its imposition may need to comply with other constitutional protections, most notably the Sixth Amendment rule articulated in Apprendi v. New Jersey.[8]  Apprendi bars judges from imposing criminal punishments based on facts not found by a jury beyond a reasonable doubt.[9]  Applying this rule to restitution would upend current practice.  

Ellingburg itself previews restitution’s Apprendi problem: in affirming Ellingburg’s restitution obligation, the lower court relied on earlier decisions rejecting Apprendi challenges to restitution on the grounds that restitution was not penal.[10]  Should the Court now hold otherwise, those challenges will return with renewed force.

1.      Ellingburg

 

Holsey Ellingburg Jr. robbed a bank in 1995, when the VWPA governed restitution, but was convicted and sentenced in 1996, after the MVRA had taken effect.  He was ordered to pay $7,567.25 in restitution and, during his incarceration, paid $2,154 toward that amount.  Under the VWPA, his restitution liability would have expired in 2016.  But in 2023, a year after his release from prison, Ellingburg received notice from his parole officer that he still owed $13,476—nearly double the original principal once accumulated interest was included.  Under the MVRA, he would be required to make $100 monthly payments until 2042, twenty years after his release.

The Eighth Circuit is one of only two circuits (along with the Seventh) to hold that MVRA restitution is not penal and thus may be applied retroactively without violating the Ex Post Facto Clause.[11]  Every other circuit to have considered the issue has taken the opposite view, treating MVRA restitution as punitive and therefore barred from retroactive application.[12]

Supreme Court precedent here has been inconsistent.  On one hand, Pasquantino v. United States has characterized—albeit in dicta—MVRA restitution as criminal punishment.[13]  On the other, just nine years later, Paroline v. United States held mandatory restitution under another statute as “primar[ily] . . . remedial or compensatory” but also “serves punitive purposes.”[14]

Ellingburg, proceeding pro se, challenged the continued enforcement of his restitution obligation under the Ex Post Facto Clause.[15]  The district court rejected the claim, holding that extending the liability period under the MVRA did not increase criminal punishment.[16]  The Eighth Circuit affirmed on separate grounds, holding that the MVRA is not penal for Ex Post Facto Clause purposes, but the panel revealed latent tension over the proper application of doctrine.  Two judges wrote separately to note that they were bound by circuit precedent characterizing MVRA restitution as remedial—but indicated that, considering the Supreme Court’s decision in Paroline, they would have reached a different conclusion absent that constraint. The third judge concurred in the judgment but defended circuit precedent as consistent with Paroline.

With representation, Ellingburg petitioned for certiorari, and the Court granted review to decide whether restitution under the MVRA is punishment for purposes of the Ex Post Facto Clause.[17]  In his merits brief, Ellingburg argued first that the statute’s text and structure make clear Congress intended MVRA restitution to operate as a criminal penalty.[18]  But even if Congress’s purpose were viewed as remedial, he maintained, the Kennedy v. Mendoza-Martinez[19] factors confirm that MVRA restitution is punitive in effect.[20]

Though it opposed certiorari, the government agreed with Ellingburg in its merits brief that restitution under the MVRA is criminal punishment.[21]  In particular, it cited the statute’s text—requiring restitution “in addition to … any other penalty”—and its integration into sentencing procedures as evidence that Congress intended restitution to be penal.  But the government nonetheless maintained that applying the MVRA retroactively does not violate the Ex Post Facto Clause, analogizing extended restitution obligation to extending an unexpired limitations period for prosecuting a crime, rather than increasing punishment.[22]

2.     Apprendi

 

Though the outcome of the case remains forthcoming, with both parties arguing that MVRA restitution is properly characterized as a penalty, Ellingburg will almost certainly tee up further arguments for constitutional protections in imposing criminal restitution.  Apprendi v. New Jersey points the way: the current regime of judicially determined restitution may be deemed unconstitutional.

Apprendi held that any fact that increases the penalty for a crime beyond a prescribed “statutory maximum,” besides the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.[23]  Imposing a criminal penalty based on judicial factfinding, the Court said, violated a defendant’s Sixth Amendment right to a trial by jury.[24]  Four years after Apprendi, the Court reiterated its rule in Blakely v. Washington, defining “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant . . . without any additional findings.”[25]

Since then, the Court has extended the protections articulated in Apprendi and its progeny to criminal fines.[26]  In Southern Union v. United States, a jury convicted a natural gas company of violating federal environmental law.  The statute at issue provided a criminal fine “of not more than $50,000 for each day of violation.”  At sentencing, however, the district court imposed a fine based on a finding by the Probation Office that the defendant had been in violation for 762 days—a fact not established at trial.  On appeal to the Supreme Court, the central question was whether Apprendi extended to criminal penalties.  The Court answered yes, implicitly expanding the Sixth Amendment’s protections.[27]

Southern Union suggests that, if MVRA restitution is deemed penal, it would fall squarely within Apprendi’s ambit—and invite similar constitutional objections.  Like the statute at issue in Southern Union, the MVRA relies on judicial factfinding to determine punishment.  Judges are directed under MVRA to determine victims’ losses, based on a presentence report prepared by the Probation Office, supplemented by any additional documentation and testimony at the court’s discretion.[28]  And “any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of evidence,” where the government bears the burden of proving victims’ losses.[29]

The constitutional question, then, is whether the current regime for ordering restitution can survive under Apprendi.  The appellate courts have thus far uniformly held that it can, reasoning that the MVRA sets no fixed ceiling: the “maximum” restitution is simply the victim’s actual loss, whatever the amount.[30]  Because that figure is prescribed by statute, they say, a jury’s guilty verdict alone suffices to set the statutory maximum.[31]  On this view, the Sixth Amendment is not implicated at all.

However, dissenters have pointed out that this reasoning conflicts with the Court’s definition of statutory maximum as the sentence a judge may impose “without additional findings.”[32]  Under the MVRA, the cap to restitution has no meaning until a judge determines the victim’s loss.  In other words, the statutory maximum is not fixed by the jury’s verdict alone—because it comes into existence only through additional judicial findings.[33] 

Though the Supreme Court has repeatedly refused to weigh in,[34] individual Justices have indicated their readiness to confront this problem.  In dissent from denial in Hester v. United States, Justice Gorsuch, joined by Justice Sotomayor argued that restitution epitomizes the Apprendi problem: because no restitution can be ordered without additional judicial findings, the statutory maximum should be understood as zero.[35]  He repeated the point this year in Rimlawi v. United States, this time writing alone.[36]

Although the Court has thus far declined to act, Ellingburg may force the issue into the open by calling the Court to decide whether MVRA restitution is penal.  If the Court says yes, future cases will likely test whether the MVRA’s mandatory, judicial factfinding-driven scheme is consistent with the Sixth Amendment.[37]  When the Court faced a similar problem in United States v. Booker, it cured the Sixth Amendment defect by making the Federal Sentencing Guidelines advisory.  No such remedy exists here.  The MVRA’s factfinding scheme is mandated by statute.  If the MVRA becomes the subject of a new wave of constitutional challenges, the very viability of restitution in its current form may come under doubt.

* Jillian Berman is a partner at Lankler Siffert & Wohl; Cindy Kuang is a 2025 graduate of Harvard Law School and a law clerk at LSW, awaiting admission to the New York State Bar; and Nkiru Anyaegbunam is a third-year law student at St. John’s University Law School and was a summer clerk at LSW.

[1] Nat’l Ass’n of Crim. Def. Lawyers, Empty Pockets and Empty Promises: How Federal Restitution Law Fails Everyone 7 (Sept. 2025), https://www.nacdl.org/getattachment/114baff3-2c46-413e-9c33-6212a3db3e01/empty-pockets-and-empty-promises-how-federal-restitution-law-fails-everyone-sept-2025.pdf.

[2] Hester v. United States, 586 U.S. 1104, 1105 (2019) (Gorsuch, J., dissenting from denial of cert.).

[3] U.S. Sent’g Comm’n, 2024 Annual Report 16 (2024), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2024/2024-Annual-Report.pdf.

[4] Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663 (2025).

[5] Mandatory Victims Restitution Act of 1996, 18 U.S.C. §§ 3663A (2025).

[6] Hester, 586 U.S. at 1105 (Gorsuch, J., dissenting from denial of cert.); see also NACDL, Empty Pockets and Empty Promises, supra note 1, at 14.

[7] See Br. in Opp’n for the United States at 12, Ellingburg v. United States, No. 24-482 (U.S. Feb. 7, 2025).

[8] Evan T. Barr, SCOTUS to Decide if Restitution Is Criminal or Civil, N.Y.L.J., May 14, 2025.

[9] Apprendi v. New Jersey, 530 U.S. 466 (2000).

[10] See United States v. Ellingburg, 113 F.4th 839, 842 (8th Cir. 2024) (per curiam) (relying on prior Eighth Circuit cases holding that Apprendi does not apply to restitution); see also United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005) (holding restitution “is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality”); United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015) (same).

[11] See Ellingburg, 113 F.4th at 842; United States v. Newman, 144 F.3d 531, 542 (7th Cir. 1998).

[12] See, e.g., United States v. Tull-Abreu, 921 F.3d 294, 305 (1st Cir. 2019); Gonzalez v. United States, 792 F.3d 232, 236, 236 n.18 (2d Cir. 2015); United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006); United States v. Grant, 715 F.3d 552, 554 (4th Cir. 2013); United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005); United States v. Lillard, 935 F.3d 827, 835 (9th Cir. 2019); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998).

[13] See Pasquantino v. United States, 544 U.S. 349, 365 (2005) (“The purpose of awarding restitution in this action is . . . to mete out appropriate criminal punishment for [the defendant’s] conduct.”).

[14] Paroline v. United States, 572 U.S. 434, 456 (2014).

[15] United States v. Ellingburg, No. 4:22-cr-00173-RK, slip op. at 1-2 (W.D. Mo. May 4, 2023) (order).

[16] Ellingburg, No. 4:22-cr-00173-RK, slip op. at 4.

[17] Ellingburg v. United States, 145 S. Ct. 1899 (2025) (Mem.) (granting cert.).

[18] See Pet’r’s Br. at 14, Ellingburg v. United States, No. 24-482 (U.S. June 23, 2025).

[19] Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (articulating seven-factor test for determining when a civil remedy functions as a criminal penalty).

[20] See Pet’r’s Br. at 36, Ellingburg v. United States, No. 24-482 (U.S. June 23, 2025).

[21] Br. for the United States at 15, Ellingburg v. United States, No. 24-482 (U.S. June 23, 2025).

[22] Id. at 29.

[23] Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

[24] See id. at 476, 490.

[25] Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis in original).

[26] See Southern Union Co. v. United States, 567 U.S. 343 (2012).

[27] Id. at 346-47.

[28] 18 U.S.C. § 3664(a)-(d)(4).

[29] 18 U.S.C. § 3664(e).

[30] See, e.g., United States v. Leahy, 438 F.3d 328, 335-38 (3d Cir. 2006) (en banc); United States v. Bengis, 783 F.3d 407, 413 (2d Cir. 2015); United States v. Kluge, 147 F.4th 1291, 1301-03 (11th Cir. 2025); United States v. Green, 722 F.3d 1146, 1150 (9th Cir. 2013).

[31] See, e.g., Bengis, 783 F.3d at 412.

[32] Blakely, 542 U.S. at 303 (italics omitted). See Leahy, 438 F.3d at 339 (McKee, J., concurring in part and dissenting in part); United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005) (Bye, J., dissenting); see also Green, 722 F.3d at 1151 (9th Cir. 2013) (“Our precedents are clear that Apprendi doesn’t apply to restitution, but that doesn’t mean our caselaw’s well-harmonized with Southern Union.”). 

[33] Leahy, 438 F.3d at 344 (McKee, J., concurring in part and dissenting in part) (emphasis in original).

[34] See, e.g., Day v. United States, 569 U.S. 959 (2013) (denying cert.); Hester v. United States, 586 U.S. 1104 (2019) (denying cert.); Rimlawi v. United States, 604 U.S. ___ (2025) (denying cert.).

[35] Hester, 586 U.S. at 1105 (Gorsuch, J., dissenting from denial of cert.).

[36] Rimlawi, 604 U.S. at ___ (Gorsuch, J., dissenting from denial of cert.).

[37] Cf. SEC v. Jarkesy, 603 U.S. ___, 144 S. Ct. 2117 (2024) (holding that civil penalties for securities fraud could not be imposed by agency adjudicators without a jury trial). Though Jarkesy arises in the civil enforcement context, it illustrates the Court’s broader insistence that juries, not government officials, decide significant financial sanctions.