A recent U.S. Supreme Court case, Ellingburg v. United States (2026), has the potential to mark a significant development regarding restitution orders and awards. A restitution order is a court directive requiring a convicted defendant to pay compensation directly to their victim for specific losses caused by the defendant’s criminal conduct. This differs from fines, which are paid to the government. The restitution award is therefore the amount that the court calculates to be fitting for the victim to be compensated and receive from the defendant. Restitution is authorized by statutes such as the Mandatory Victims Restitution Act (MVRA)1 , allowing and requiring courts to order restitution for numerous federal offenses. Restitution can cover property loss or damage, as well as lost income or profits related to the crime. Furthermore, it covers medical or counselling expenses and other direct financial losses due to the criminal act. It is interesting to note that MVRA generally excludes non-economic damages such as pain and emotional harm.
The Ellingburg v. United States case, heard in the Supreme Court, addressed whether the Ex Post Facto Clause applies to restitution ordered under the MVRA, and concluded that restitution is a criminal penalty2. Ex Post Facto Clause is a constitutional safeguard that prevents the government from retroactively increasing criminal punishment. Defendant Holsey Ellingburg Jr. was convicted in the 1990s for bank robbery and instructed to pay restitution of approximately $7,500. Once released, the government attempted to enforce upon Ellingburg a collection under MVRA provisions that extended liability and added mandatory interest. Ellingburg argued that applying these later-enacted terms retroactively violated the Constitution’s ban on Ex Post Facto punishment. The Supreme Court agreed that MVRA restitution is “plainly criminal punishment,” 3 when imposed as part of sentencing, thus the Ex Post Facto Clause applies. This judgment is substantial because it clarifies that under the MVRA, a restitution order is not just a civil obligation to repay loss; it is part of a criminal sentence with constitutional protections.
Before this decision, restitutions often sat within a grey area. The Ellingburg v. United States case leaves little room for dispute; restitution is deemed criminal punishment, triggering constitutional protections. For clients facing restitution exposure, this clarity poses practical outcomes, for example, restitution terms may be constitutionally limited if enforcement rules change later. Additionally, retroactive application of harsher collection rules may be challenged. Lastly, government efforts to extend, expand, or amend restitution requirements are now more legally constrained.
Clients should consider and understand how constitutional limits may impact financial liabilities, particularly when negotiating plea agreements or responding to post-conviction enforcement, as well as re-evaluating restitution provisions in plea agreements.
1 https://law.justia.com/codes/us/title-18/part-ii/chapter-232/sec-3663/?utm
Leech Tishman has experience in a wide range of criminal litigation matters, including white collar criminal defense matters. Our team regularly monitors enforcement trends to better our clients’ outcomes. For assistance or additional information, please contact Laurel F. Grass at lgrass@leechtishman.com, a Partner in Leech Tishman’s Litigation and White Collar Defense Groups.