Victim Restitution and the Ex Post Facto Clause

“Moving the goalposts” is widely recognized as an unfair thing to do. In criminal law, the issue rises to a constitutional one. From the beginning, the Constitution has forbidden both Congress and state legislatures from passing “ex post facto laws.”* The primary, and simple, effect of this prohibition is that a legislature cannot make an act criminal or increase the punishment for it after it has been committed, i.e., “after the fact,” in Latin.

Does a law that increases the length of time in which a restitution award may be collected constitute an ex post facto law? The U.S. Supreme Court today took up a case to decide that question, Ellingburg v. United States, No. 24-482.

There are two good arguments why the answer is no.

First, restitution to the victim is not punishment. Unlike other aspects of a criminal judgment, a restitution award is not for the usual punishment purposes of retribution, deterrence, or incapacitation. It is not imposed for the benefit of society as a whole. It compensates the victim, just like compensatory damages in a civil tort suit would. A restitution award in a criminal case merely facilitates the victim’s collection of compensation without the burden of obtaining and enforcing a civil judgment.

Second, merely extending the duration of enforceability is not an increase in liability, whether that liability be punishment or not. It is a procedural tweak that narrows an escape hatch for the defendant to avoid his obligation. This is where the case has potentially broader implications.

In my view, laws that give criminal defendants ways to escape the punishment imposed on them at the time of judgment or potentially available at the time of the crime are matters of grace and not entitlement. These include parole, credits for good behavior, etc., and statutes of limitations (at least those that have not yet run). Anything that lets a defendant off with less than he deserves and could be sentenced to at the time of crime does not involve the concerns that motivated the ex post clause. If act X was punishable by sentence Y at the time the defendant chose to do X, he has no gripe under the clause if he actually gets punishment Y or anything less.

The Court also took up a case involving a limit on a lawyer’s consultation with the defendant during an overnight recess in the middle of the defendant’s testimony. That case is Villareal v. Texas, No. 24-557.

*Article I, § 9, cl. 3 & § 10, cl. 1.